Stock Purchase Forms

Sponsored Links

--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PURCHASE AGREEMENT
AND PLAN OF REORGANIZATION
AMONG:
QUOKKA SPORTS, INC.,
A DELAWARE CORPORATION;
GOLF.COM, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
GOLFDATA CORPORATION,
A TEXAS CORPORATION
THE NEW YORK TIMES COMPANY
MAGAZINE GROUP, INC.,
A DELAWARE CORPORATION;
MEDIA ONE INTERACTIVE SERVICES, INC.,
A COLORADO CORPORATION;
TOTAL SPORTS INC.,
A DELAWARE CORPORATION; AND
OTTO CANDIES, INC.
DATED AS OF JUNE 8, 2000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
SECTION 1. DESCRIPTION OF TRANSACTION................................ A-1
1.1 Acquisition of Ownership Interests.......................... A-1
1.2 Closing..................................................... A-1
1.3 Exchange of Ownership Interests for Parent Common Stock..... A-2
1.4 Escrow Shares............................................... A-2
1.5 Further Action.............................................. A-2
1.6 Liquidation and Dissolution of GD........................... A-2
1.7 Assignment of Website Content............................... A-2
1.8 Tax Treatment............................................... A-3
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
SELLING MEMBERS........................................... A-3
2.1 Representations of the Selling Members...................... A-3
(a) Authority; Binding Nature of Agreement.................. A-3
(b) No Restrictions......................................... A-3
(c) Non-Contravention; Consents............................. A-3
(d) Ownership Interest...................................... A-3
2.2 Representations of the Company and the Selling Members...... A-4
2.2.1 Due Organization; No Subsidiaries; Etc. .................... A-4
2.3 Certificate of Formation and Operating Agreement; Records... A-4
2.4 Ownership Interests......................................... A-4
2.5 Financial Statements........................................ A-5
2.6 Absence of Changes.......................................... A-5
2.7 Title to Assets............................................. A-6
2.8 Bank Accounts; Receivables.................................. A-6
2.9 Equipment; Leasehold........................................ A-7
2.10 Proprietary Assets.......................................... A-7
2.11 Contracts................................................... A-8
2.12 Liabilities................................................. A-9
2.13 Compliance with Legal Requirements.......................... A-9
2.14 Governmental Authorizations................................. A-10
2.15 Tax Matters................................................. A-10
2.16 Employee and Labor Matters; Benefit Plans................... A-11
2.17 Insurance................................................... A-12
2.18 Related Party Transactions.................................. A-12
2.19 Legal Proceedings; Orders................................... A-13
2.20 Authority; Binding Nature of Agreement...................... A-13
2.21 Non-Contravention; Consents................................. A-13
2.22 Full Disclosure............................................. A-14
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PARENT.................. A-14
3.1 Authority; Binding Nature of Agreement...................... A-14
3.2 No Restrictions............................................. A-14
3.3 Non-Contravention; Consents................................. A-14
3.4 Valid Issuance.............................................. A-14
3.5 Parent Financial Statements................................. A-14
3.6 Offering Valid.............................................. A-15
3.7 Due Organization............................................ A-15
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
3.8 Absence of Changes.......................................... A-15
3.9 Amended and Restated Operating Agreement.................... A-15
SECTION 4. CERTAIN COVENANTS OF THE COMPANY AND THE SELLING
MEMBERS............................................................ A-15
4.1 Access and Investigation.................................... A-15
4.2 Operation of the Company's Business......................... A-15
4.3 Notification; Updates to Disclosure Schedule................ A-17
4.4 No Negotiation.............................................. A-17
SECTION 5. ADDITIONAL COVENANTS OF THE PARTIES....................... A-18
5.1 Filings and Consents; Nasdaq Application.................... A-18
5.2 Public Announcements........................................ A-18
5.3 Efforts..................................................... A-18
5.4 Amended and Restated Operating Agreement.................... A-18
5.5 Termination of Broadcast.com Agreements..................... A-18
5.6 Certificate of Non-Foreign Status........................... A-18
5.7 Release..................................................... A-18
5.8 Registration Rights......................................... A-18
5.9 GD Securities Law Compliance................................ A-18
5.10 Parent Stockholder Approval................................. A-19
SECTION 6. CONDITIONS PRECEDENT TO OBLIGATION OF PARENT.............. A-19
6.1 Accuracy of Representations by the Company.................. A-19
6.2 Accuracy of Representations by each Selling Member.......... A-19
6.3 Performance of Covenants by the Company..................... A-19
6.4 Performance of Covenants by each Selling Member............. A-19
6.5 [Intentionally Omitted]..................................... A-19
6.6 Agreements and Documents.................................... A-19
6.7 No Restraints............................................... A-20
6.8 No Claims or Legal Proceedings.............................. A-20
6.9 Securities Compliance....................................... A-20
SECTION 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY AND
SELLERS............................................................ A-20
7.1 Accuracy of Representations................................. A-20
7.2 Performance of Covenants.................................... A-20
7.3 Documents................................................... A-21
7.4 Listing..................................................... A-21
7.5 Investor Rights Agreement................................... A-21
7.6 No Restraints............................................... A-21
7.7 Distribution of Cash........................................ A-21
SECTION 8. TERMINATION............................................... A-21
8.1 Termination Events.......................................... A-21
8.2 Termination Procedures...................................... A-22
8.3 Special Termination Rights.................................. A-22
8.4 Effect of Termination....................................... A-22
SECTION 9. INDEMNIFICATION, ETC...................................... A-22
9.1 Survival of Representations, Etc............................ A-22
9.2 Indemnification by each Selling Member...................... A-23
9.3 Indemnification by Parent................................... A-23
9.4 Indemnification by the Company and Sellers.................. A-23
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
9.5 Threshold................................................... A-24
9.6 No Contribution............................................. A-24
9.7 Defense of Third-Party Claims............................... A-24
9.8 Limitations on Liability.................................... A-25
9.9 Tax Contests................................................ A-25
9.10 Exercise of Remedies by Parent Indemnitees Other than
Parent...................................................... A-25
SECTION 10. MISCELLANEOUS PROVISIONS................................. A-25
10.1 Designated Agent............................................ A-25
10.2 Further Assurances.......................................... A-26
10.3 Fees and Expenses........................................... A-26
10.4 Attorneys' Fees............................................. A-26
10.5 Notices..................................................... A-26
10.6 Confidentiality............................................. A-28
10.7 Time of the Essence......................................... A-29
10.8 Headings.................................................... A-29
10.9 Counterparts................................................ A-29
10.10 Governing Law............................................... A-29
10.11 Successors and Assigns...................................... A-29
10.12 Remedies Cumulative; Specific Performance................... A-29
10.13 No Waiver................................................... A-29
10.14 Amendments.................................................. A-29
10.15 Severability................................................ A-29
10.16 Parties in Interest......................................... A-30
10.17 Entire Agreement............................................ A-30
10.18 Construction................................................ A-30
</TABLE>
iii
<PAGE> 5
EXHIBITS
<TABLE>
<S> <C>
Exhibit A Certain Definitions
Exhibit B Ownership Interests
Exhibit C Form of Escrow Agreement
Exhibit D Form of Member Certification
Exhibit E Form of Certificate of Non-Foreign Status
Exhibit F Form of Release
Exhibit G Form of Amended and Restated Investor Rights Agreement
Exhibit H GD Shareholder Certification
Exhibit I Form of Legal Opinion of Fulbright & Jaworski L.L.P., as
counsel to the Company
Exhibit J Form of Legal Opinion of counsel to each Selling Member
Exhibit K Form of Legal Opinion of Cooley Godward LLP
</TABLE>
<PAGE> 6
PURCHASE AGREEMENT AND
PLAN OF REORGANIZATION
THIS PURCHASE AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is made
and entered into as of June 8, 2000, by and among: Quokka Sports, Inc., a
Delaware corporation ("Parent"); Golf.com, L.L.C., a Delaware limited liability
company (the "Company"), and each of the following members of the Company: Total
Sports Inc., a Delaware corporation (the "Site Operator"), GolfData Corporation,
a Texas corporation ("GD"), The New York Times Company Magazine Group, Inc., a
Delaware corporation ("NYT"), Otto Candies Inc. ("Otto Candies") and Media One
Interactive Services, Inc., a Colorado corporation ("MediaOne") (each, a
"Selling Member" and collectively, the "Sellers" or "Selling Members").
NBC -- Golf.com Holding, Inc., a Delaware corporation and the
successor-in-interest to NBC Multimedia, Inc., a Delaware corporation ("NBC" or
the "Non-Selling Member") is a member of the Company that is not selling its
Ownership Interest. Certain other capitalized terms used in this Agreement are
defined in Exhibit A.
RECITALS
A. Selling Members and the Non-Selling Member collectively own all of the
membership interests, or units, in the Company (the "Ownership Interests") as
set forth in Exhibit B. Except as otherwise provided herein, each Selling Member
wishes to sell, and Parent wishes to purchase from each Selling Member, such
Selling Member's Ownership Interest in the Company as set forth in Exhibit B, on
the terms and subject to the conditions set forth in this Agreement (the
"Transaction").
B. Notwithstanding the foregoing Recital A, GD desires to transfer to
Parent, and Parent desires to acquire from GD, the Ownership Interest owned by
GD, which constitutes substantially all of the properties and assets of GD,
solely in exchange for 1,626,472 shares of the common stock, $0.0001 par value
of Parent, with Parent assuming no other liabilities of GD, all in a transaction
intended to qualify as a "reorganization" within the meaning of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the "Code"), it being
contemplated by GD and Parent that GD will thereafter, as an integral part of
the transaction, distribute such shares to its shareholders in complete
liquidation of GD and dissolve, all upon the terms and conditions set forth
herein.
C. This Agreement has been approved by the respective boards of directors
or comparable governing bodies of Parent and the Company. Each Selling Member
has also approved this Agreement and each Non-Selling Member whose approval is
required under the Company's Operating Agreement has also approved the sale of
the Ownership Interests by the Selling Members.
AGREEMENT
In consideration of the foregoing, and the mutual representations,
warranties, covenants and agreements contained herein, and intending to be
legally bound, the parties hereto agree as follows:
SECTION 1. DESCRIPTION OF TRANSACTION
1.1 Acquisition of Ownership Interests. At the Closing (as defined below)
and in accordance with the terms of this Agreement, each Selling Member shall
sell or otherwise transfer to Parent and Parent shall purchase or otherwise
acquire from each Selling Member, such Selling Member's Ownership Interest in
the Company as set forth in Exhibit B. Thereafter, Parent will own the Ownership
Interests in the Company sold by the Selling Members and the Non-Selling Member
will own the remainder of the Ownership Interests in the Company.
1.2 Closing. Subject to satisfaction or waiver of the conditions to
closing set forth in this Agreement, the consummation of the transactions
contemplated by this Agreement (the "Closing") will take place at the offices of
Cooley Godward LLP, One Maritime Plaza, 20th Floor, San Francisco, California
94111 at 10:00 a.m. on the later to occur of (a) July 18, 2000 or (b) four
business days after each of the conditions set
A-1
<PAGE> 7
forth in Sections 6 and 7 have been satisfied or waived, or at such other time
and date as Parent and Sellers may mutually agree, such agreement not to be
unreasonably withheld (the "Scheduled Closing Time"). The date on which the
Closing actually takes place is referred to in this Agreement as the "Closing
Date".
1.3 Exchange of Ownership Interests for Parent Common Stock. Upon the
Closing, in exchange for GD's transfer of the Ownership Interest it owns, which
constitutes substantially all of the properties and assets of GD, and each other
Selling Member's transfer of its Ownership Interest to Parent, each Selling
Member will be entitled to receive the number of whole shares of the common
stock of Parent, par value $0.0001 per share ("Parent Common Stock"), set forth
with respect to such Selling Member on Exhibit B. At or as soon as practicable
after the Closing, Parent shall cause to be issued to each Selling Member
certificates representing in the aggregate the number of shares of Parent Common
Stock to which each Selling Member is entitled pursuant to this Section 1.3.
1.4 Escrow Shares. Parent shall deposit Ten Percent (10%) of the aggregate
Share Consideration issuable to the Sellers hereunder (the "Escrow Shares") with
State Street Bank and Trust Company of California, N.A. (the "Escrow Agent") to
be held and disbursed by the Escrow Agent in accordance with the form of escrow
agreement (the "Escrow Agreement") attached as Exhibit C. Execution and delivery
of a Member Certification in substantially the form attached as Exhibit D and an
Escrow Agreement (with all documents required thereunder) by a Selling Member is
a condition precedent to such Selling Member receiving any certificate
evidencing Parent Common Shares. Subject to the preceding sentence, the Escrow
Shares will be represented by a certificate or certificates issued in the name
of each Selling Member in proportion to each such Selling Member's interest in
the Escrow Shares. To the extent that any dividend or distribution, or other
transaction, with respect to the Escrow Shares results in a liability for Tax,
such Tax liability shall be that of the Selling Members (in proportion to each
such Selling Member's interest in the Escrow Shares), and not of Parent or the
Company. Any and all voting rights with respect to the Escrow Shares shall be
exercisable by the Selling Members or their authorized agent as of the Closing
Date. Parent, the Company, and the Selling Members hereby agree and acknowledge
that the Escrow Shares shall be treated as transferred to and owned by the
Selling Members as of the Closing Date and at all times thereafter for all Tax
purposes.
1.5 Further Action. If, at any time after the Closing Date, any further
action is determined by Parent to be reasonably necessary to carry out the
purposes of this Agreement or to vest Parent with full right, title and
possession of and to the Ownership Interests of the Selling Members, the Selling
Members agree to take any actions reasonably necessary to accomplish such
objectives.
1.6 Liquidation and Dissolution of GD. From and after the Closing, GD will
not engage in any business, will promptly liquidate and dissolve as a
corporation, and, subject to compliance with Section 5.9 hereof, will distribute
the Parent Common Stock received by it to its shareholders in complete
cancellation of the shares of capital stock of GD held by its shareholders.
1.7 Assignment of Website Content. Site Operator hereby agrees that,
effective as of the Closing Date, it grants the Company a perpetual, fully paid,
worldwide, nonexclusive license to duplicate, display, perform, modify and
otherwise exploit any rights Site Operator may have, to the extent of Site
Operator's rights therein (and for this purpose without representation as to the
extent of such rights), in and to any of the text, images, video, audio,
graphics, trademarks and data (the "Content") created for and used on the
Company's www.golf.com website (the "Website"), and agrees to take all actions
necessary to enforce this provision, including ensuring that employees of and
consultants to Site Operator and the Company do not separately retain exclusive
ownership rights to the Content. Notwithstanding the foregoing, nothing in this
Section 1.7 is intended to assign, license or convey to the Company any rights
in or to the underlying technology and system architecture used by Site Operator
(and the employees of and consultants to Site Operator and the Company) in the
Website. Further Site Operator agrees that it will not in any media, without the
prior written consent of the Company, duplicate, display or perform the Content,
or major segments of the Content, substantially as an unmodified whole, to
produce or provide comprehensive coverage of golf-related sports events or
information, it being understood that Site Operator intends to use individual
components of the Content or modifications or extracts thereof to provide
general news coverage of golf-related sports events and information as part of
more
A-2
<PAGE> 8
general sports and news media offerings. In no event, however, may Site Operator
utilize any Content other than that which Site Operator owns or has an express
written license to use.
1.8 Tax Treatment. The parties hereto intend that the acquisition by
Parent of the GD ownership interest, which constitutes substantially all of the
properties and assets of GD, pursuant to this Agreement constitute and be
treated as a nontaxable reorganization for federal income tax purposes.
Accordingly, each of Parent and GD hereby agrees that it will report, and GD
agrees to use its reasonable efforts to cause GD's shareholders to report, for
all federal income tax purposes, the transactions contemplated by this Agreement
as a nontaxable reorganization pursuant to Section 368(a)(1)(C) of the Code.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING MEMBERS
2.1 Representations of the Selling Members. Subject to the limitations on
liability set forth in this Agreement, each of the Selling Members severally,
but not jointly, represents and warrants, for itself and not for any other
Selling Member, to and for the benefit of the Parent Indemnitees as follows in
this Section 2.1:
(a) Authority; Binding Nature of Agreement. Subject to the requirements of
the Operating Agreement, the Selling Member has the absolute and unrestricted
right, power and authority to enter into and to perform its obligations under
this Agreement; and the execution, delivery and performance by the Selling
Member of this Agreement has been duly authorized by all necessary action on the
part of the Selling Member and its officers and directors. This Agreement
constitutes the legal, valid and binding obligation of the Selling Member,
enforceable against the Selling Member in accordance with its terms, subject to
(i) laws of general application relating to bankruptcy, insolvency and the
relief of debtors, and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
(b) No Restrictions. There is no suit, action, claim, investigation or
inquiry by any administrative agency or Governmental Body, and no legal,
administrative or arbitration proceeding pending or, to such Selling Member's
Knowledge, threatened against such Selling Member or any of such Selling
Member's properties or assets, with respect to the execution, delivery and
performance of this Agreement or the consummation of the Transaction or any of
the other transactions contemplated hereby or any other agreement entered into
by such Selling Member in connection with the consummation of the Transaction or
any of the other transactions contemplated hereby.
(c) Non-Contravention; Consents. Except as set forth in the Disclosure
Schedule with respect to such Selling Member, neither (1) the execution,
delivery or performance of this Agreement or any of the other agreements
referred to in this Agreement, nor (2) the consummation of the Transactions or
any of the other transactions contemplated by this Agreement, will directly or
indirectly (with or without notice or lapse of time): (a) result in a violation
of (i) any of the provisions of the Selling Member's organizational documents,
or (ii) any resolution adopted by the Selling Member's officers and directors;
or (b) result in a violation of, or give any Governmental Body or other Person
the right to exercise any remedy or obtain any relief against the Company under,
any Legal Requirement or any order, writ, injunction, judgment or decree to
which the Selling Member is subject.
Except as set forth in the Disclosure Schedule with respect to such Selling
Member, the Selling Member is not and will not be required to make any filing
with or give any notice to, or to obtain any Consent from, any Person in
connection with (x) the execution, delivery or performance by the Selling Member
of this Agreement or any of the other agreements referred to in this Agreement,
or (y) the consummation by the Selling Member of the Transaction or any of the
other transactions contemplated by this Agreement.
(d) Ownership Interest. The Selling Member has good and valid title, free
and clear of all Liens, to the Ownership Interest it is selling or otherwise
transferring to Parent pursuant to this Agreement. The Ownership Interest being
sold by the Selling Member constitutes the entire membership interest of the
Selling Member in the Company. The Selling Member has no outstanding options,
warrants or other rights providing for the acquisition or sale of any membership
interests in the Company other than the Ownership Interest being sold hereunder.
A-3
<PAGE> 9
2.2 Representations of the Company and the Selling Members. Subject to the
limitations on liability set forth in this Agreement and the Escrow Agreement,
the Company and each Selling Member (except Otto Candies) jointly and severally
represent and warrant to and for the benefit of the Parent Indemnitees the
matters set forth in this Section 2.2 and in the following Sections 2.3 through
2.22:
2.2.1 Due Organization; No Subsidiaries; Etc.
(a) The Company is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all necessary limited liability company power and authority: (i) to conduct its
business in the manner in which its business is currently being conducted; (ii)
to own and use its assets in the manner in which its assets are currently owned
and used; and (iii) to perform its obligations under all Material Contracts (as
defined in Section 2.11(a)).
(b) Except as set forth in the Disclosure Schedule, the Company has not
conducted any business under or otherwise used, for any purpose or in any
jurisdiction, any fictitious name, assumed name, trade name or other name, other
than the name "Golf.com," except for any such items that would not have a
Material Adverse Effect on the Company.
(c) The Company is not and has not been required to be qualified,
authorized, registered or licensed to do business as a foreign corporation in
any jurisdiction other than the jurisdictions identified in the Disclosure
Schedule, except where the failure to be so qualified, authorized, registered or
licensed has not had and would not have a Material Adverse Effect on the
Company. The Company is in good standing as a foreign corporation in each of the
jurisdictions identified in Part 2.2(c) of the Disclosure Schedule.
(d) The Disclosure Schedule accurately sets forth (i) the names of the
managers of the Company, (ii) the names of individuals on any committees of the
managers of the Company, and (iii) the names and titles of the Company's
officers.
(e) The Company does not own any controlling interest in any Entity and the
Company has never owned, beneficially or otherwise, any shares or other
securities of, or any direct or indirect equity interest in, any Entity. The
Company has not agreed and is not obligated to make any future investment in or
capital contribution to any Entity. The Company has not guaranteed and is not
responsible or liable for any obligation of any other Persons or Entities.
2.3 Certificate of Formation and Operating Agreement; Records. The Company
has delivered to Parent or its Representatives accurate and complete copies of:
(1) the Company's certificate of formation and operating agreement, including
all amendments thereto; and (2) the minutes and other records of the meetings
and other proceedings (including any actions taken by written consent or
otherwise without a meeting) of the members of the Company, the managers of the
Company and all committees of the managers of the Company. There have been no
formal actions of the members of the Company, the managers of the Company or any
committee of the managers of the Company that are not reflected in such minutes
or other records. To their Knowledge, there has not been any material violation
of any of the provisions of the Company's certificate of formation or operating
agreement. The books of account, stock or other equity records, minute books and
other records of the Company are accurate, up-to-date and complete in all
material respects.
2.4 Ownership Interests.
(a) Exhibit B sets forth the record ownership of all Ownership Interests in
the Company. Except as set forth in the Disclosure Schedule, there are no
outstanding options, warrants, rights, calls, commitments, conversion rights,
rights of exchange, plans or other agreement of any character providing for the
purchase, issuance or sale of any membership interests in the Company.
(b) All outstanding Ownership Interests have been issued and granted in
compliance with (i) all applicable securities laws and other applicable Legal
Requirements, and (ii) all material requirements set forth in applicable
Contracts.
A-4
<PAGE> 10
(c) To their Knowledge, the Company has never repurchased, redeemed or
otherwise reacquired any membership interests or other securities of the
Company.
2.5 Financial Statements.
(a) Set forth in the Disclosure Schedule are the following financial
statements and notes (collectively, the "Company Financial Statements"):
(i) the unaudited balance sheets of the Company as of December 31,
1997, 1998 and 1999, and the related unaudited income statements and
statements of cash flows of the Company for the years then ended;
(ii) the unaudited balance sheet of the Company as of March 31, 2000,
and the related unaudited income statement of the Company for the three
months then ended;
(iii) the unaudited balance sheet of the Company as of April 30, 2000
(the "Unaudited Interim Balance Sheet"), and the related unaudited income
statement of the Company for the one month then ended.
(b) Except as set forth in the Disclosure Schedule, the Company Financial
Statements are accurate and complete in all material respects and present fairly
the financial position of the Company as of the respective dates thereof and the
results of operations and (in the case of the financial statements referred to
in Section 2.5(a)(i)) cash flows of the Company for the periods covered thereby.
The Company Financial Statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods covered (except that the Company Financial Statements do not contain
footnotes and are subject to normal and recurring year-end audit adjustments
which would not reasonably be expected to have a Material Adverse Effect on the
Company.
2.6 Absence of Changes. To their Knowledge, except as set forth in the
Disclosure Schedule, since April 30, 2000:
(a) there has not been any material adverse change in the Company's
business, condition, assets, liabilities, operations or financial performance
that could reasonably be expected to have a Material Adverse Effect on the
Company, and no event specific to the Company (as opposed to general economic
conditions or industry trends) has occurred that could reasonably be expected to
have a Material Adverse Effect on the Company;
(b) there has not been any material loss, damage or destruction to, or any
material interruption in the use of any of the Company's material assets
(whether or not covered by insurance);
(c) except as otherwise contemplated herein, the Company has not declared,
accrued, set aside or paid any dividend or made any other distribution in
respect of any Ownership Interests, and has not repurchased, redeemed or
otherwise reacquired membership interests or other securities;
(d) the Company has not sold, issued or authorized the issuance of (i) any
membership interest or other security, (ii) any option or right to acquire any
membership interest or any other security, or (iii) any instrument convertible
into or exchangeable for any membership interest or other security;
(e) there has been no amendment to the Company's certificate of formation
or operating agreement, and the Company has not effected or been a party to any
Acquisition Transaction, recapitalization or similar transaction;
(f) the Company has not formed any subsidiary or acquired any equity
interest or other interest in any other Entity;
(g) the Company has not made any capital expenditure which, when added to
all other capital expenditures made on behalf of the Company since April 30,
2000 exceeds $100,000;
A-5
<PAGE> 11
(h) the Company has not (i) entered into a Material Contract (as defined in
Section 2.11(a)), or (ii) amended or prematurely terminated, or waived any
material right or remedy under, any Material Contract;
(i) the Company has not (i) acquired, leased or licensed any material right
or other material asset from any other Person, (ii) sold or otherwise disposed
of, or leased or licensed, any material right or other material asset to any
other Person, or (iii) waived or relinquished any material right, except in each
case in the ordinary course of business and consistent with the Company's past
practices;
(j) the Company has paid its invoices in the ordinary course of business
and has not written off as uncollectible, or established any extraordinary
reserve with respect to, any account receivable or other indebtedness;
(k) the Company has not made any pledge of any of its assets or otherwise
permitted any of its assets to become subject to any Encumbrance, except in the
ordinary course of business and consistent with the Company's past practices;
(l) the Company has not (i) lent money to any Person (other than pursuant
to routine travel advances made to employees in the ordinary course of
business), or (ii) incurred or guaranteed any indebtedness for borrowed money
that is still outstanding, except as reflected on the Company Financial
Statements;
(m) the Company has not (i) established or adopted any employee benefit
plan, (ii) paid any bonus or made any profit-sharing or similar payment to, or
increased the amount of the wages, salary, commissions, fringe benefits or other
compensation or remuneration payable to, any of its directors, officers,
employees or consultants, or (iii) hired any new employee or consultant;
(n) the Company has not changed any of its methods of accounting or
accounting practices in any respect, including discounting accounts receivable
for earlier cash payment outside the ordinary course of business;
(o) the Company has not made any Tax election;
(p) the Company has not commenced or settled any Legal Proceeding;
(q) the Company has not entered into any material transaction or taken any
other material action outside the ordinary course of business or inconsistent
with its past practices; and
(r) the Company has not agreed or committed to take any of the actions
referred to in clauses "(c)" through "(q)" above.
2.7 Title to Assets.
(a) The Company owns, and has good, valid and marketable title to, all
assets owned by it, including: (i) all assets reflected on the Unaudited Interim
Balance Sheet other than those that have been disposed of in the ordinary course
of business; (ii) all assets referred to in Sections 2.8(b) and 2.10 as being
owned by the Company and all of the Company's rights under the Contracts
identified in Part 2.11 of the Disclosure Schedule; and (iii) all other assets
reflected in the Company's books and records as being owned by the Company.
Except as set forth in the Disclosure Schedule, all of said assets are owned by
the Company free and clear of any liens or other Encumbrances, except for (x)
any lien for current taxes not yet due and payable, and (y) minor liens that
have arisen in the ordinary course of business and that do not (in any case or
in the aggregate) materially detract from the value of the assets subject
thereto or materially impair the operations of the Company.
(b) The Disclosure Schedule identifies all assets that are material to the
business of the Company and that are being leased or licensed to the Company.
2.8 Bank Accounts; Receivables.
(a) To their Knowledge, the Disclosure Schedule provides accurate
information with respect to each account maintained by or for the benefit of the
Company at any bank or other financial institution.
A-6
<PAGE> 12
(b) To their Knowledge, the Disclosure Schedule provides an accurate and
complete breakdown and aging of all accounts receivable, notes receivable and
other receivables of the Company as of April 30, 2000. To their Knowledge,
except as set forth in the Disclosure Schedule, all existing accounts receivable
of the Company (including those accounts receivable reflected on the Unaudited
Interim Balance Sheet that have not yet been collected and those accounts
receivable that have arisen since April 30, 2000 and have not yet been
collected) (i) represent valid obligations of customers of the Company arising
from bona fide transactions entered into in the ordinary course of business, and
(ii) are current and will be collected in full when due, without any
counterclaim or set off (net of an allowance for doubtful accounts not to exceed
$50,000 in the aggregate).
2.9 Equipment; Leasehold.
(a) To their Knowledge, all material items of equipment and other tangible
assets owned by or leased to the Company are adequate for the uses to which they
are being put, are in good condition and repair (ordinary wear and tear
excepted) and are adequate for the conduct of the Company's business in the
manner in which such business is currently being conducted.
(b) The Company does not own any real property or any interest in real
property other than a leasehold interest in office space.
2.10 Proprietary Assets.
(a) The Disclosure Schedule sets forth, with respect to each Company
Proprietary Asset registered with any Governmental Body or for which an
application has been filed with any Governmental Body, (i) a brief description
of such Proprietary Asset, and (ii) the names of the jurisdictions covered by
the applicable registration or application. The Disclosure Schedule identifies
and provides a brief description of all other Company Proprietary Assets. The
Disclosure Schedule identifies and provides a brief description of each
Proprietary Asset licensed to the Company by any Person (except for any
Proprietary Asset that is licensed to the Company under any third party software
license generally available to the public at a cost of less than $25,000), and
identifies the license agreement under which such Proprietary Asset is being
licensed to the Company. Except as set forth in the Disclosure Schedule, the
Company has good, valid and marketable title to all of the Company Proprietary
Assets identified in Part 2.10(a)(i) of the Disclosure Schedule (other than
domain names), free and clear of all liens and other Encumbrances, and has a
valid right to use all Proprietary Assets identified in Part 2.10(a)(ii) of the
Disclosure Schedule. The domain name www.golf.com is registered in the name of
the Company. Except as set forth in the Disclosure Schedule, the Company has
remained current in the payment of registration fees for the www.golf.com domain
name and has paid such registration fees through May 25, 2001. To their
Knowledge, no person has any rights to use the www.golf.com domain name other
than the Company. Except as set forth in the Disclosure Schedule, the Company is
not obligated to make any payment to any Person for the use of any Company
Proprietary Asset that could reasonably be expected to have a Material Adverse
Effect on the Company. Except as set forth in the Disclosure Schedule, to their
Knowledge the Company has not developed jointly with any other Person any
Company Proprietary Asset with respect to which such other Person has any
rights.
(b) Except as set forth in the Disclosure Schedule, to their Knowledge, the
Company has not (other than pursuant to license agreements identified in the
Disclosure Schedule) disclosed or delivered to any Person, or permitted the
disclosure or delivery to any Person of, (i) the source code, or any portion or
aspect of the source code, of any Company Proprietary Asset, or (ii) the object
code, or any portion or aspect of the object code, of any Company Proprietary
Asset.
(c) Except as set forth in the Disclosure Schedule, to their Knowledge,
none of the Company Proprietary Assets infringes or conflicts with any
Proprietary Asset owned or used by any other Person. Except as set forth in the
Disclosure Schedule, to their Knowledge, the Company is not infringing,
misappropriating or making any unlawful use of, and the Company has not at any
time infringed, misappropriated or made any unlawful use of, or received any
notice or other communication (in writing or otherwise) of any actual, alleged,
possible or potential infringement, misappropriation or unlawful use of, any
Proprietary Asset owned or used by any other Person. Except as set forth in the
Disclosure Schedule, to their Knowledge, no other
A-7
<PAGE> 13
Person is infringing, misappropriating or making any unlawful use of, and no
Proprietary Asset owned or used by any other Person infringes any Company
Proprietary Asset.
(d) Except as set forth in the Disclosure Schedule and except for
Proprietary Assets licensed to the Company under third party software licenses
generally available to the public, to their Knowledge, the Company Proprietary
Assets together with Proprietary Assets licensed to the Company constitute all
the Proprietary Assets necessary to enable the Company to conduct its business
in the manner in which such business is being conducted as of the date hereof.
Except as set forth in the Disclosure Schedule, to their Knowledge, (i) the
Company has not licensed any of the Company Proprietary Assets to any Person on
an exclusive basis, and (ii) the Company has not entered into any covenant not
to compete or Contract materially limiting its ability to exploit any of its
Proprietary Assets or to transact business in any market or geographical area or
with any Person.
(e) The Disclosure Schedule identifies the persons who have executed and
delivered to Site Operator a confidential inventions and assignment agreement
identical to the form previously delivered to Parent or its Representatives.
2.11 Contracts.
(a) To their Knowledge, the Disclosure Schedule identifies all of the
following that exist as of June 8, 2000:
(i) each Company Contract relating to the employment of, or the
performance of services by, any employee, consultant or independent
contractor under which payments are reasonably expected to be in excess of
$50,000;
(ii) each Company Contract relating to the acquisition, transfer, use,
development, sharing or license of any technology or any Proprietary Asset
under which payments are reasonably expected to be in excess of $50,000;
(iii) each Company Contract imposing any restriction on the Company's
right or ability (A) to compete with any other Person or (B) to acquire any
product or other asset or any services from any other Person, to sell any
product or other asset to or perform any services for any other Person or
to transact business or deal in any other manner with any other Person;
(iv) each Company Contract creating or involving any agency
relationship, distribution arrangement or franchise relationship under
which payments are reasonably expected to be in excess of $50,000;
(v) each Company Contract relating to the acquisition, issuance or
transfer of any membership interests or other securities of the Company;
(vi) each Company Contract relating to the creation of any Encumbrance
with respect to any asset of the Company, except for (x) any lien for
current taxes not yet due and payable, and (y) liens that have arisen in
the ordinary course of business and that do not materially detract from the
value of the assets subject thereto or materially impair the operations of
the Company;
(vii) each Company Contract creating an obligation of the Company
under any guaranty, any pledge, any performance or completion bond, any
indemnity or any surety arrangement under which payments are reasonably
expected to be in excess of $50,000;
(viii) each Company Contract creating or relating to any partnership
or joint venture or any sharing of revenues, profits, losses, costs or
liabilities under which payments are reasonably expected to be in excess of
$50,000;
(ix) each pending Company Contract relating to the purchase or sale of
any product or other asset by or to, or the performance of any services by
or for, any Related Party (as defined in Section 2.18) under which payments
are reasonably expected to be in excess of $50,000; and
A-8
<PAGE> 14
(x) any other Company Contract under which there is reasonably
expected to be (A) the payment or delivery of cash or other consideration
in an amount or having a value in excess of $50,000 in the aggregate, or
(B) the performance of services having a value in excess of $50,000 in the
aggregate.
Contracts identified in the Disclosure Schedule in the respective categories
described in clauses "(i)" through "(x)" above are referred to in this Agreement
as "Material Contracts."
(b) The Company has delivered to Parent or its Representatives accurate and
complete copies of all written Material Contracts identified in Part 2.11 of the
Disclosure Schedule, including all amendments thereto. Part 2.11 of the
Disclosure Schedule provides an accurate description of the terms of each
Material Contract that is not in written form. To their Knowledge, each Material
Contract identified in Part 2.11 of the Disclosure Schedule is valid and in full
force and effect, and is enforceable by the Company in accordance with its
terms, subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
(c) Except as set forth in the Disclosure Schedule, to their Knowledge:
(i) there is no continuing violation or breach by the Company or any
other Person of, or continuing default under, any Material Contract that
could reasonably be expected to have a Material Adverse Effect on the
Company;
(ii) no event has occurred, and no circumstance or condition exists,
that (with or without notice or lapse of time) could reasonably be expected
to (A) result in a violation or breach of any of the provisions of any
Material Contract, (B) give any Person the right to declare a default or
exercise any remedy under any Material Contract, (C) give any Person the
right to accelerate the maturity or performance of any Material Contract,
or (D) give any Person the right to cancel, terminate or modify any
Material Contract, and that in each case could reasonably be expected to
have a Material Adverse Effect on the Company;
(iii) since December 31, 1999, the Company has not received any
written notice or other communication regarding any actual or possible
violation or breach of, or default under, any Material Contract that could
reasonably be expected to have a Material Adverse Effect on the Company;
(iv) the Company has not waived any of its rights under any Material
Contract that could reasonably be expected to have a Material Adverse
Effect on the Company; and
(v) No Person is renegotiating, or has a right pursuant to the terms
of any Material Contract to renegotiate, any amount paid or payable to the
Company under any Material Contract or any other material term or provision
of any Material Contract.
2.12 Liabilities. The Company has no accrued, contingent or other
liabilities of any nature, either matured or unmatured that would be required to
be reflected in financial statements in accordance with generally accepted
accounting principles, whether due or to become due, and that could reasonably
be expected to have a Material Adverse Effect on the Company, except for: (a)
liabilities identified as such in the "liabilities" column of the Unaudited
Interim Balance Sheet; (b) accounts payable or accrued salaries that have been
incurred by the Company since April 30, 2000 in the ordinary course of business
and consistent with the Company's past practices; (c) liabilities under the
Material Contracts; and (d) other liabilities identified in the Disclosure
Schedule.
2.13 Compliance with Legal Requirements. To their Knowledge, the Company
is, and has at all times since December 31, 1998 been, in compliance with all
applicable Legal Requirements, except where the failure to comply with such
Legal Requirements has not had and could not reasonably be expected to have a
Material Adverse Effect on the Company. Except as set forth in the Disclosure
Schedule, to their Knowledge, since December 31, 1998, the Company has not
received any notice or other communication from any Governmental Body regarding
any actual or possible violation of, or failure to comply with, any Legal
Requirement, except where such actual or possible violation, or failure to
comply, could not reasonably be expected to have a Material Adverse Effect on
the Company.
A-9
<PAGE> 15
2.14 Governmental Authorizations. To their Knowledge, the Disclosure
Schedule identifies each material Governmental Authorization held by the
Company, and the Company has delivered to Parent or its Representatives accurate
and complete copies of all Governmental Authorizations held by the Company and
identified in the Disclosure Schedule. To their Knowledge, the Governmental
Authorizations held by the Company and identified in the Disclosure Schedule are
valid and in full force and effect, and collectively constitute all Governmental
Authorizations necessary to enable the Company to conduct its business in the
manner in which its business is currently being conducted as of the date hereof.
The Company is in substantial compliance with the terms and requirements of the
respective Governmental Authorizations held by the Company and identified in the
Disclosure Schedule. To their Knowledge, since December 31, 1998, the Company
has not received any written notice or other written communication from any
Governmental Body regarding (a) any actual or possible violation of or failure
to comply with any term or requirement of any Governmental Authorization, or (b)
any actual or possible revocation, withdrawal, suspension, cancellation,
termination or modification of any Governmental Authorization, in either case
that could reasonably be expected to have a Material Adverse Effect on the
Company.
2.15 Tax Matters.
(a) All Tax Returns required to be filed by or on behalf of the Company
with any Governmental Body with respect to any taxable period ending on or
before the Closing Date (the "Company Returns") (i) have been or will be filed
on or before the applicable due date (including any extensions of such due
date), and (ii) have been, or will be when filed, accurately and completely
prepared in all material respects in compliance with all applicable Legal
Requirements. All amounts shown on the Company Returns to be due on or before
the Closing Date have been or will be paid on or before the Closing Date. The
Company has delivered to Parent or its Representatives accurate and complete
copies of its 1998 and 1999 federal income tax returns previously filed.
(b) Except as set forth in the Disclosure Schedule, the Company Financial
Statements fully accrue all actual and contingent liabilities for Taxes with
respect to all periods through the dates thereof in accordance with generally
accepted accounting principles. The Company will establish, in the ordinary
course of business and consistent with its past practices, reserves adequate for
the payment of all Taxes for the period from April 30, 2000 through the Closing
Date, and the Company will disclose the dollar amount of such reserves to Parent
on or prior to the Closing Date.
(c) To their Knowledge, there have been no examinations or audits of any
Company Return. Except as set forth in the Disclosure Schedule, no extension or
waiver of the limitation period applicable to any of the Company Returns has
been granted (by the Company or any other Person), and no such extension or
waiver has been requested from the Company.
(d) Except as set forth in the Disclosure Schedule, no claim or Proceeding
is pending or, to their Knowledge, has been threatened against or with respect
to the Company in respect of any Tax. There are no unsatisfied liabilities for
Taxes (including liabilities for interest, additions to tax and penalties
thereon and related expenses) with respect to any notice of deficiency or
similar document received by the Company with respect to any Tax (other than
liabilities for Taxes asserted under any such notice of deficiency or similar
document which are being contested in good faith by the Company and with respect
to which adequate reserves for payment have been established). There are no
liens for Taxes upon any of the assets of the Company except liens for current
Taxes not yet due and payable. The Company has not been, and the Company will
not be, required to include any adjustment in taxable income for any tax period
(or portion thereof) pursuant to Section 481 or 263A of the Code or any
comparable provision under state or foreign Tax laws as a result of transactions
or events occurring, or accounting methods employed, prior to the Closing.
(e) To their Knowledge, there is no agreement, plan, arrangement or other
Contract covering any employee or independent contractor or former employee or
independent contractor of the Company that, considered individually or
considered collectively with any other such Contracts, could reasonably be
expected to, give rise directly or indirectly to the payment of any amount that
would not be deductible pursuant to Section 280G or Section 162 of the Code. The
Company is not, and has never been, a party to or bound by any tax indemnity
agreement, tax sharing agreement, tax allocation agreement or similar Contract.
A-10
<PAGE> 16
2.16 Employee and Labor Matters; Benefit Plans.
(a) Part 2.16(a) of the Disclosure Schedule identifies each salary, bonus,
deferred compensation, incentive compensation, severance pay, termination pay,
hospitalization, medical, life or other insurance, supplemental unemployment
benefits, profit-sharing, pension or retirement plan, program or agreement
(collectively, the "Plans") sponsored, maintained, contributed to or required to
be contributed to by the Company for the benefit of any employee of the Company
("Employee") or consultant to the Company since December 31, 1998, except for
Plans which would not require the Company to make payments or provide benefits
having a value in excess of $25,000 in the aggregate.
(b) To their Knowledge, the Company does not maintain, sponsor or
contribute to, and has not at any time in the past maintained, sponsored or
contributed to, any employee pension benefit plan (as defined in Section 3(2) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
whether or not excluded from coverage under specific Titles or Merger Subtitles
of ERISA) for the benefit of Employees or former Employees (a "Pension Plan").
(c) To their Knowledge, the Company maintains, sponsors or contributes only
to those employee welfare benefit plans (as defined in Section 3(1) of ERISA,
whether or not excluded from coverage under specific Titles or Merger Subtitles
of ERISA) for the benefit of Employees or former Employees which are described
in Part 2.16(c) of the Disclosure Schedule (the "Welfare Plans"), none of which
is a multiemployer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered to Parent or its
Representatives:
(i) an accurate and complete copy of such Plan (including all
amendments thereto);
(ii) an accurate and complete copy of the annual report, if required
under ERISA, with respect to such Plan for the last two years;
(iii) an accurate and complete copy of the most recent summary plan
description, together with each Summary of Material Modifications, if
required under ERISA, with respect to such Plan;
(iv) if such Plan is funded through a trust or any third party funding
vehicle, an accurate and complete copy of the trust or other funding
agreement (including all amendments thereto) and accurate and complete
copies the most recent financial statements thereof; and
(v) an accurate and complete copy of the most recent determination
letter received from the Internal Revenue Service with respect to such Plan
(if such Plan is intended to be qualified under Section 401(a) of the
Code).
(e) To their Knowledge, the Company is not required to be and has never
been required to be, treated as a single employer with any other Person under
Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. The
Company has never been a member of an "affiliated service group" within the
meaning of Section 414(m) of the Code. To their Knowledge, the Company has never
made a complete or partial withdrawal from a multiemployer plan, as such term is
defined in Section 3(37) of ERISA, resulting in "withdrawal liability," as such
term is defined in Section 4201 of ERISA (without regard to subsequent reduction
or waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) The Company does not have any plan or commitment to create any
additional Welfare Plan or any Pension Plan, or to modify or change any existing
Welfare Plan or Pension Plan (other than to comply with applicable law) in a
manner that would materially affect any Employee.
(g) Except as set forth in the Disclosure Schedule, no Welfare Plan
provides death, medical or health benefits (whether or not insured) with respect
to any current or former Employee after any such Employee's termination of
service (other than (i) benefit coverage mandated by applicable law, including
coverage provided pursuant to Section 4980B of the Code, (ii) deferred
compensation benefits accrued as liabilities on the Unaudited Interim Balance
Sheet, and (iii) benefits the full cost of which are borne by current or former
Employees (or the Employees' beneficiaries)).
A-11
<PAGE> 17
(h) With respect to each of the Welfare Plans constituting a group health
plan within the meaning of Section 4980B(g)(2) of the Code, the provisions of
Section 4980B of the Code ("COBRA") have been complied with, except where the
failure to so comply could not reasonably be expected to have a Material Adverse
Effect on the Company.
(i) Each of the Plans has been operated and administered in all material
respects in accordance with applicable Legal Requirements, including but not
limited to ERISA and the Code, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect on the Company.
(j) Each of the Plans intended to be qualified under Section 401(a) of the
Code has received a favorable determination from the Internal Revenue Service.
(k) Except as set forth in the Disclosure Schedule, neither the execution,
delivery or performance of this Agreement, nor the consummation of the
Transaction or any of the other transactions contemplated by this Agreement,
will result in any payment (including any bonus, golden parachute or severance
payment) to any current or former Employee, manager or member of the Company
(whether or not under any Plan), or materially increase the benefits payable
under any Plan, or result in any acceleration of the time of payment or vesting
of any such benefits.
(l) The Disclosure Schedule contains a list of all salaried employees of
the Company as of April 30, 2000, and correctly reflects, in all material
respects, their salaries, any other compensation payable to them (including
compensation payable pursuant to bonus, deferred compensation or commission
arrangements), their dates of employment and their positions. The Company is not
a party to any collective bargaining contract or other Contract with a labor
union involving any of its Employees or consultants. Except as set forth in the
Disclosure Schedule, all of the Company's employees are "at will" employees and
all consultants may be terminated at any time by the Company.
(m) The Disclosure Schedule identifies as of the date hereof each Employee
who is not fully available to perform work because of disability or other leave
and the anticipated date of return to full service.
(n) To their Knowledge, the Company is in compliance with all applicable
Legal Requirements and Contracts relating to employment, employment practices,
wages, bonuses and terms and conditions of employment, including employee
compensation matters, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect on the Company.
(o) Except as set forth in the Disclosure Schedule, the Company has good
labor relations, and, to their Knowledge, none of the Company's employees or
consultants intends to terminate his or her employment or consultant
relationship with the Company as a result of the consummation of the transaction
contemplated herein.
2.17 Insurance. The Disclosure Schedule identifies all material insurance
policies maintained by, at the expense of or for the benefit of the Company and
identifies any material claims made thereunder, and the Company has delivered to
Parent or its Representatives accurate and complete copies of the insurance
policies identified on the Disclosure Schedule. To their Knowledge, each of the
insurance policies identified in the Disclosure Schedule is in full force and
effect. To their Knowledge, since December 31, 1999, the Company has not
received any written notice regarding any actual or possible (a) cancellation or
invalidation of any insurance policy, (b) refusal of any coverage or rejection
of any claim under any insurance policy, or (c) material adjustment in the
amount of the premiums payable with respect to any insurance policy.
2.18 Related Party Transactions. Except as set forth in the Disclosure
Schedule, to their Knowledge: (a) no Related Party has, and no Related Party has
at any time since December 31, 1999 had, any direct or indirect interest in any
material asset used in or otherwise relating to the business of the Company; (b)
no Related Party is, or has at any time since December 31, 1999 been, indebted
to the Company; (c) since December 31, 1999, no Related Party has entered into,
or has had any direct or indirect financial interest in (other than through de
minimis stock ownership in public companies), any material Contract, transaction
or business dealing involving the Company; and (d) no Related Party has any
claim or right against the Company (other than rights to receive compensation
for services performed as an employee of the Company).
A-12
<PAGE> 18
(For purposes of this Section 2.18 each of the following will be deemed to be a
"Related Party": (i) each individual who is, or who has at any time since
December 31, 1999 been, a manager or an officer of the Company; (ii) each member
of the immediate family of each of the individuals referred to in clause "(i)"
above; and (iii) any trust or other Entity (other than the Company) in which any
one of the individuals referred to in clauses "(i)" and "(ii)" above holds (or
in which more than one of such individuals collectively hold), beneficially or
otherwise, a material voting, proprietary or equity interest.)
2.19 Legal Proceedings; Orders.
(a) Except as set forth in the Disclosure Schedule, there is no pending
Legal Proceeding, and, to their Knowledge, no Person has threatened to commence
any Legal Proceeding: (i) to which the Company is a party or to which any of the
assets owned or used by the Company are subject, in either case that could
reasonably be expected to have a Material Adverse Effect on the Company; or (ii)
that seeks to prevent, delay or make illegal the Transaction or any of the other
transactions contemplated by this Agreement.
(b) Except as set forth in the Disclosure Schedule, since December 31,
1998, no Legal Proceeding has been commenced by or has been pending against the
Company.
(c) To their Knowledge, there is no order, writ, injunction, judgment or
decree to which the Company, or any of the assets owned or used by the Company,
is subject, that in any case could reasonably be expected to have a Material
Adverse Effect on the Company.
2.20 Authority; Binding Nature of Agreement. The Company has the absolute
and unrestricted right, power and authority to enter into and to perform its
obligations under this Agreement; and the execution, delivery and performance by
the Company of this Agreement have been duly authorized by all necessary action
on the part of the Company and its managers and members. This Agreement
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of debtors, and
(ii) rules of law governing specific performance, injunctive relief and other
equitable remedies.
2.21 Non-Contravention; Consents. Except as set forth in the Disclosure
Schedule, to their Knowledge, neither (1) the execution, delivery or performance
of this Agreement or any of the other agreements referred to in this Agreement,
nor (2) the consummation of the Transactions or any of the other transactions
contemplated by this Agreement, will directly or indirectly (with or without
notice or lapse of time):
(a) result in a violation of (i) any of the provisions of the Company's
certificate of formation or operating agreement, or (ii) any resolution adopted
by the Company's managers, members or any committee of the managers of the
Company;
(b) result in a violation of, or give any Governmental Body or other Person
the right to exercise any remedy or obtain any relief under, any Legal
Requirement or any order, writ, injunction, judgment or decree to which the
Company, or any of the assets owned or used by the Company, is subject;
(c) result in a violation of any of the terms or requirements of, or give
any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate
or modify, any Governmental Authorization that is held by the Company;
(d) result in a violation or breach of, or result in a default under, any
Company Contract that is or would constitute a Material Contract, or give any
Person the right to (i) declare a default or exercise any remedy under any such
Company Contract, (ii) accelerate the maturity or performance of any such
Company Contract, or (iii) cancel, terminate or modify any such Company
Contract; or
(e) result in the imposition or creation of any Encumbrance upon or with
respect to any asset owned or used by the Company (except for minor liens that
will not, in any case or in the aggregate, materially detract from the value of
the assets subject thereto or materially impair the operations of the Company).
Except as set forth in the Disclosure Schedule, to their Knowledge, the Company
is not and will not be required to make any filing with or give any notice to,
or to obtain any Consent from, any Person in connection with (x) the execution,
delivery or performance of this Agreement or any of the other agreements
referred to
A-13
<PAGE> 19
in this Agreement, or (y) the consummation of the Transaction or any of the
other transactions contemplated by this Agreement.
2.22 Full Disclosure. To their Knowledge, this Agreement (including the
Disclosure Schedule) does not (i) contain any representation, warranty or
information that is false or misleading with respect to any material fact, or
(ii) omit to state any material fact or necessary in order to make the
representations, warranties and information contained and to be contained herein
and therein (in the light of the circumstances under which such representations,
warranties and information were or will be made or provided) not false or
misleading.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Company and each Selling Member as
follows:
3.1 Authority; Binding Nature of Agreement. Parent has the absolute and
unrestricted right, power and authority to perform its obligations under this
Agreement; and the execution, delivery and performance by Parent of this
Agreement (including the contemplated issuance of Parent Common Stock in the
Transaction in accordance with this Agreement) has been duly authorized by all
necessary action on the part of Parent and its board of directors. This
Agreement constitutes the legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms, subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies.
3.2 No Restrictions. To the Knowledge of Parent, there is no suit, action,
claim, investigation or inquiry by any administrative agency or Governmental
Body, and no legal, administrative or arbitration proceeding pending or, to
Parent's Knowledge, threatened against Parent or any of their properties or
assets, with respect to the execution, delivery and performance of this
Agreement or the consummation of the Transaction or any of the other
transactions contemplated hereby or any other agreement entered into by Parent
in connection with the consummation of the Transaction or any of the other
transactions contemplated hereby.
3.3 Non-Contravention; Consents. To the Knowledge of Parent, neither (1)
the execution, delivery or performance of this Agreement or any of the other
agreements referred to in this Agreement, nor (2) the consummation of the
Transactions or any of the other transactions contemplated by this Agreement,
will directly or indirectly (with or without notice or lapse of time): (a)
result in a violation of (i) any of the provisions of Parent's organizational
documents, or (ii) any resolution adopted by Parent's officers and directors;
(b) result in a violation of any Legal Requirement or any order, writ,
injunction, judgment or decree to which Parent is subject; or (c) result in a
violation of any of the terms or requirements of, or give any Governmental Body
the right to revoke, withdraw, suspend, cancel, terminate or modify, any
Governmental Authorization that is held by Parent.
3.4 Valid Issuance. The Parent Common Stock to be issued in the
Transaction, when issued in accordance with the provisions of this Agreement,
will be duly authorized, validly issued, fully paid and nonassessable, free and
clear of any preemptive rights or other rights to purchase held by any other
person.
3.5 Parent Financial Statements.
(a) The consolidated financial statements contained in the registration
statements and Forms 10-K and 10-Q filed by Parent with the SEC between July 27,
1999 and the date of this Agreement (the "Parent SEC Documents"): (i) complied
as to form in all material respects with the published rules and regulations of
the SEC applicable thereto; (ii) were prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods covered, except as may be indicated in the notes to such financial
statements and (in the case of unaudited statements) as permitted by Form 10-Q
of the SEC, and except that unaudited financial statements may not contain
footnotes and are subject to normal and recurring year-end audit adjustments;
and (iii) fairly presented the consolidated financial position of Parent and its
subsidiaries as of the respective dates thereof and the consolidated results of
operations of Parent and its subsidiaries for the periods covered thereby.
A-14
<PAGE> 20
(b) As of the time it was filed with the SEC (or, if amended or superseded
by a filing prior to the date of this Agreement, then on the date of such
filing): (i) each of the Parent SEC Documents complied in all respects with the
applicable requirements of the Securities Act or the Exchange Act (as the case
may be); and (ii) none of the Parent SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
3.6 Offering Valid. Assuming the accuracy of the representations and
warranties of each Selling Member contained in the Member Certifications and of
each GolfData shareholder in the Shareholder Certifications, the offer, sale and
issuance of the Parent Common Stock in connection with the Transaction will be
exempt from the registration requirements of the Securities Act and will have
been registered or qualified (or are exempt from registration and qualification)
under the registration, permit or qualification requirements of all applicable
state securities laws.
3.7 Due Organization. The Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all necessary power and authority: (i) to conduct its business in the manner in
which its business is currently being conducted; (ii) to own and use its assets
in the manner in which its assets are currently owned and used; and (iii) to
perform its obligations under all of its material Contracts.
3.8 Absence of Changes. Since December 31, 1999, except as reflected in
Parent's SEC Documents, there has been no amendment to the Parent's Certificate
of Incorporation or Bylaws, and the Parent has not effected or been a party to
any Acquisition Transaction, recapitalization or similar transaction.
3.9 Amended and Restated Operating Agreement. Parent in good faith
believes that it already has reached agreement with NBC regarding the material
terms of the Amended and Restated Operating Agreement of the Company described
in NBC's approval paragraphs set forth on NBC's signature page to this
Agreement.
SECTION 4. CERTAIN COVENANTS OF THE COMPANY AND THE SELLING MEMBERS
4.1 Access and Investigation. During the period from the date of this
Agreement through the Closing Date (the "Pre-Closing Period"), the Company will
cause its Representatives to and each Selling Member will use its commercially
reasonable efforts to cause the Company and its Representatives to: (a) provide
Parent and Parent's Representatives with reasonable access to the Company's
Representatives, personnel and assets and to all existing books, records, Tax
Returns, work papers and other documents and information of the Company; (b)
provide Parent and Parent's Representatives with copies of such existing books,
records, Tax Returns, work papers and other documents and information of the
Company, and with such additional financial, operating and other data and
information of the Company, as Parent may reasonably request, in all cases
subject to the confidentiality letter between the Company and Parent dated April
3, 2000 and (c) provide Parent and its Representatives with such financial and
other records as they may reasonably request to commence preparation of audited
financial statements of the Company, and reasonably assist Parent, at Parent's
sole expense, in such undertaking.
4.2 Operation of the Company's Business. Except as otherwise approved by
Parent, which approval will not be unreasonably withheld, during the Pre-Closing
Period, the Company will comply with (and will use commercially reasonable
efforts to cause the Site Operator to comply with) the following provisions, and
each Selling Member will use commercially reasonable efforts to cause the
Company to comply with the following provisions:
(a) the Company will conduct its business and operations in the ordinary
course and in substantially the same manner as such business and operations have
been conducted prior to the date of this Agreement, including paying its
invoices in the ordinary course of business;
(b) the Company will use reasonable efforts to preserve intact its current
business organization, keep available the services of its current officers,
employees and consultants, and maintain its relations and good will
A-15
<PAGE> 21
with all suppliers, customers, landlords, creditors, employees, consultants and
other Persons having business relationships with the Company;
(c) the Company will keep in full force all insurance policies identified
in the Disclosure Schedule (or comparable substitute policies);
(d) the Company will cause its officers and managers to report regularly to
Parent concerning the status of the Company's business;
(e) except as set forth in Section 7.7, the Company will not declare,
accrue, set aside or pay any dividend or make any other distribution in respect
of any membership interests, and will not repurchase, redeem or otherwise
reacquire any membership interests or other securities;
(f) the Company will not sell, issue or authorize the issuance of (i) any
membership interest or other security, (ii) any option or right to acquire any
membership interest or other security, or (iii) any instrument convertible into
or exchangeable for any membership interest or other security;
(g) except as contemplated by this Agreement, the Company will not amend or
permit the adoption of any amendment to the Company's articles of organization
or operating agreement, or effect or permit the Company to become a party to any
Acquisition Transaction, recapitalization or similar transaction;
(h) the Company will not form any subsidiary or acquire any equity interest
or other interest in any other Entity;
(i) the Company will not make any capital expenditure outside of the
Company's approved budget, a copy of which has been provided to Parent, except
for capital expenditures that, when added to all other capital expenditures made
outside of the Company's approved budget, made on behalf of the Company during
the Pre-Closing Period, do not exceed $25,000 in aggregate;
(j) the Company will not (i) enter into, or permit any of the assets owned
or used by it to become bound by, any Contract that is or would constitute a
Material Contract, or (ii) amend or prematurely terminate, or waive any material
right or remedy under, any Material Contract;
(k) the Company will not (i) acquire, lease or license any right or other
asset from any other Person, (ii) sell or otherwise dispose of, or lease or
license, any right or other asset to any other Person, or (iii) waive or
relinquish any right, except in each case for assets acquired, leased, licensed
or disposed of by the Company, and waivers by the Company, in each case in the
ordinary course of business or pursuant to Company Contracts;
(l) the Company will not (i) lend money to any Person (except that the
Company may make routine travel advances to employees in the ordinary course of
business), or (ii) incur or guarantee any indebtedness for borrowed money;
(m) the Company will not (i) establish, adopt or amend any employee benefit
plan, (ii) pay any bonus or make any profit-sharing payment, cash incentive
payment or similar payment to, or increase the amount of the wages, salary,
commissions, fringe benefits or other compensation or remuneration payable to,
any of its managers, officers, employees or consultants, or (iii) hire any new
employee or consultant whose aggregate annual cash compensation is expected to
exceed $50,000;
(n) the Company will not change any of its methods of accounting or
accounting practices in any material respect, including discounting accounts
receivable for earlier cash payment outside the ordinary course of business;
(o) the Company will not make any Tax election;
(p) the Company will not commence or settle any material Legal Proceeding;
(q) the Company will not agree or commit to take any of the actions
described in clauses "(e)" through "(p)" above.
A-16
<PAGE> 22
Notwithstanding the foregoing, the Company may take any action described in
clauses "(e)" through "(q)" above if Parent gives its prior written consent to
the taking of such action by the Company, which consent will not be unreasonably
withheld (it being understood that Parent's withholding of consent to any action
will not be deemed unreasonable if Parent determines in good faith that the
taking of such action would not be in the best interests of Parent or would not
be in the best interests of the Company).
4.3 Notification; Updates to Disclosure Schedule.
(a) During the Pre-Closing Period, the Company and Sellers will promptly
notify Parent in writing of:
(i) the discovery by the Company or Sellers of any event, condition,
fact or circumstance that occurred or existed on or prior to the date of
this Agreement and that caused or constitutes an inaccuracy in or breach of
any representation or warranty made by the Company or Sellers in this
Agreement;
(ii) any event, condition, fact or circumstance that occurs, arises or
exists after the date of this Agreement and that would cause or constitute
an inaccuracy in or breach of any representation or warranty made by the
Company or Sellers in this Agreement if (A) such representation or warranty
had been made as of the time of the occurrence, existence or discovery of
such event, condition, fact or circumstance, or (B) such event, condition,
fact or circumstance had occurred, arisen or existed on or prior to the
date of this Agreement;
(iii) any breach of any covenant or obligation of the Company or
Sellers; and
(iv) any event, condition, fact or circumstance that would make the
timely satisfaction of any of the conditions set forth in Section 6 or
Section 7 impossible or unlikely.
(b) If the Company or the Selling Members have Knowledge of any event,
condition, fact or circumstance that is required to be disclosed pursuant to
Section 4.3(a) or that requires any change in the Disclosure Schedule, or if the
Company or the Selling Members have Knowledge of any event, condition, fact or
circumstance that would require a change assuming the Disclosure Schedule were
dated as of the date of the occurrence, existence or discovery of such event,
condition, fact or circumstance, then the Company and/or Sellers will promptly
deliver to Parent an update to the Disclosure Schedule specifying such change.
No such update will be deemed to supplement or amend the Disclosure Schedule for
the purpose of determining the accuracy as of the date of this Agreement of any
of the representations and warranties made by the Company or Sellers in this
Agreement solely for the purpose of determining whether any of the conditions
set forth in Section 6 has been satisfied. Such update will however be deemed to
supplement or amend the Disclosure Schedule for all other purposes under this
Agreement, provided that if an update is delivered to Parent within three (3)
days prior to the Closing, Parent may delay the Closing to such date that will
provide Parent a three (3) day period to review such update.
4.4 No Negotiation. During the Pre-Closing Period, the Company and Sellers
will not, directly or indirectly:
(a) solicit or encourage the initiation of any inquiry, proposal or offer
from any Person (other than Parent) relating to a possible Acquisition
Transaction;
(b) participate in any discussions or negotiations or enter into any
agreement with, or provide any non-public information to, any Person (other than
Parent) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person
(other than Parent) relating to a possible Acquisition Transaction.
The Company and Sellers will promptly notify Parent in writing of any material
inquiry, proposal or offer relating to a possible Acquisition Transaction that
is received by the Company and/or Sellers during the Pre-Closing Period.
A-17
<PAGE> 23
SECTION 5. ADDITIONAL COVENANTS OF THE PARTIES
5.1 Filings and Consents; Nasdaq Application. As promptly as practicable
after the execution of this Agreement, each party to this Agreement (a) will
make all filings (if any) and give all notices (if any) required to be made and
given by such party in connection with the Transaction and the other
transactions contemplated by this Agreement (including any required anti-trust
filings by it or its affiliates under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 and the rules promulgated thereunder (the "HSR Act")),
and (b) will use all commercially reasonable efforts to obtain all Consents (if
any) required to be obtained (pursuant to any applicable Legal Requirement or
Contract, or otherwise) by such party in connection with the Transaction and the
other transactions contemplated by this Agreement. The Company and Sellers, on
the one hand, and Parent, on the other hand, will (upon request) promptly
deliver to the other a copy of each such filing made, each such notice given and
each such Consent obtained during the Pre-Closing Period. Parent shall promptly
submit a request to Nasdaq that the shares of Parent Common Stock to be issued
in the Transaction be approved for listing (subject to notice of issuance) on
the Nasdaq National Market and provide the Selling Members a copy thereof.
5.2 Public Announcements. During the Pre-Closing Period, (i) the parties
shall not (and will not permit any of their Representatives to) issue any press
release or make any public statement regarding this Agreement or the
Transaction, or regarding any of the other transactions contemplated by this
Agreement, without the other parties' prior written consent; provided, however,
that Parent may issue any press release or make any public statement regarding
this Agreement or the Transaction that it, or its Representatives, reasonably
determine is necessary to comply with applicable securities laws.
5.3 Efforts. During the Pre-Closing Period, (a) the Company will use its
commercially reasonable efforts to cause the conditions set forth in Section 6
to be satisfied on a timely basis, (b) each Selling Member will use its
commercially reasonable efforts to cause the conditions set forth in Section 6
to be satisfied on a timely basis and (c) Parent will use its commercially
reasonable efforts to cause the conditions set forth in Section 7 to be
satisfied on a timely basis.
5.4 Amended and Restated Operating Agreement. Parent will negotiate in
good faith with NBC to complete and execute, on or prior to June 22, 2000, an
Amended and Restated Operating Agreement as is required as a condition to NBC's
approval that is set forth on NBC's signature page to this Agreement.
5.5 Termination of Broadcast.com Agreements. Prior to the Closing the
Company will use reasonable commercial efforts to terminate the agreement, dated
April 27, 1999, between broadcast.com, Inc. and the Company, or to assist Parent
in terminating or renegotiating such agreement.
5.6 Certificate of Non-Foreign Status. On or prior to the Closing, each
Selling Member will execute and deliver to Parent a Certificate of Non-Foreign
Status, substantially in the form of Exhibit E.
5.7 Release. At the Closing, each Selling Member shall execute and deliver
to the Company a Release in the form of Exhibit F.
5.8 Registration Rights. Parent shall seek and use reasonable efforts to
obtain prior to Closing the stockholder consents necessary to amend, and if such
consents are obtained shall amend on or prior to the Closing, Parent's existing
Amended and Restated Investor Rights Agreement as set forth in the Amended and
Restated Investor Rights Agreement in substantially the form attached as Exhibit
G (the "Investor Rights Agreement"). If such consents cannot be obtained, Parent
shall grant to the Selling Members at Closing registration rights with respect
to the Parent Common Stock issued pursuant to this Agreement substantially
identical to, and pari pasu with, the rights set forth in the Investor Rights
Agreement.
5.9 GD Securities Law Compliance. GD will, in accordance with its articles
of incorporation and bylaws and the applicable requirements of the corporation
laws of the State of Texas, promptly take all actions necessary (i) to cause
each of its shareholders who is not an "accredited investor" (as defined in Rule
501 under the Securities Act) to appoint a "purchaser representative" (as
defined in Rule 501 under the Securities Act) in connection with evaluating the
merits and risks of acquiring Parent Common Stock immediately after the Closing
of this Transaction, (ii) to cause each such shareholder and each other
shareholder approving the
A-18
<PAGE> 24
Transaction to complete, execute and deliver a Shareholder Certification in
substantially the form attached hereto as Exhibit H, (iii) cause a copy of an
information statement or other disclosure document in such form as is reasonably
approved by Parent (the "Information Statement") to be delivered to each
shareholder of the Company for their consideration of the Transaction and (iv)
call and hold such meetings (as promptly as practicable) as may be necessary or
appropriate under applicable securities laws to enable GD's shareholders,
including those who have appointed a "purchaser representative", to consider and
approve this Agreement and the Transaction. Without limiting the generality of
the foregoing, the board of directors of GD will recommend to GD's shareholders
a vote in favor of the adoption of this Agreement and the Transaction.
5.10 Parent Stockholder Approval. Parent will promptly take all actions
necessary to obtain any approvals of its stockholders required in connection
with the transactions contemplated by this Agreement.
SECTION 6. CONDITIONS PRECEDENT TO OBLIGATION OF PARENT
The obligation of Parent to effect the Transaction and otherwise consummate
the transactions contemplated by this Agreement are subject to the satisfaction
or waiver, at or prior to the Closing, of each of the following conditions:
6.1 Accuracy of Representations by the Company. All of the
representations and warranties made by the Company in this Agreement (considered
collectively), and each of such representations and warranties (considered
individually), will have been accurate in all material respects as of the date
of this Agreement (except that all representations and warranties that are
subject to materiality or Material Adverse Effect qualifiers shall have been
accurate, subject to such qualifiers, in all respects), and will be accurate in
all material respects as of the Scheduled Closing Time as if made at the
Scheduled Closing Time.
6.2 Accuracy of Representations by each Selling Member. All of the
representations and warranties made by each Selling Member in this Agreement
(considered collectively), and each of such representations and warranties
(considered individually), will have been accurate in all material respects as
of the date of this Agreement (except that all representations and warranties
that are subject to materiality or Material Adverse Effect qualifiers shall have
been accurate, subject to such qualifiers, in all respects), and will be
accurate in all material respects as of the Scheduled Closing Time as if made at
the Scheduled Closing Time.
6.3 Performance of Covenants by the Company. All of the covenants and
obligations that the Company is required to comply with or to perform at or
prior to the Closing (considered collectively), and each of such covenants and
obligations (considered individually), will have been complied with and
performed in all material respects.
6.4 Performance of Covenants by each Selling Member. All of the covenants
and obligations that each Selling Member is required to comply with or to
perform at or prior to the Closing (considered collectively), and each of such
covenants and obligations (considered individually), will have been complied
with and performed in all material respects; provided, however, that Section
5.9(i) and (ii) shall be complied with and performed in all respects.
6.5 [Intentionally Omitted].
6.6 Agreements and Documents. Parent shall have received the following
agreements and documents, each of which will be in full force and effect:
(a) a certificate executed by the Company's Chief Executive Officer, or
comparable official, certifying that (1) each of the representations and
warranties set forth in Section 2 (other than Section 2.1) is accurate in all
material respects as of the Closing Date as if made on the Closing Date, and (2)
that the conditions set forth in Sections 6.1, 6.3 and 6.5 and, to his actual
knowledge, Sections 6.7 and 6.8 have been duly satisfied (the "Company Closing
Certificate");
(b) a certificate executed by an authorized officer of each Selling Member,
certifying that, as to such Selling Member, (1) each of the representations and
warranties of such Selling Member set forth in Section 2.1 is accurate in all
material respects as of the Closing Date as if made on the Closing Date, (2) to
the Knowledge of such Selling Member each of the representations and warranties
set forth in Section 2
A-19
<PAGE> 25
(other than Section 2.1) is accurate in all material respects as of the Closing
Date, and (3) that the conditions set forth in Section 6.2, 6.4 and 6.9 have
been duly satisfied by such Selling Member (each such certificate being referred
to as a "Selling Member Closing Certificate");
(c) all Consents listed on Schedule 6.6(c) where failure to obtain the same
would have a Material Adverse Effect on the Company;
(d) the Certificate of Non-Foreign Status in the form of Exhibit E,
executed by the Company and each Selling Member;
(e) Releases in the form of Exhibit F, executed by each Selling Member;
(f) the Escrow Agreement in the form of Exhibit C, executed by the
Designated Company Agent and Sellers;
(g) a legal opinion of Fulbright & Jaworski L.L.P., as counsel to the
Company, dated as of the Closing Date, in the form of Exhibit I and a legal
opinion of counsel to each Selling Member, dated as of the Closing Date, in the
form of Exhibit J;
(h) written resignations of all managers and officers of the Company,
effective as of the Closing Date, except for the managers of the Company
appointed by NBC; and
(i) certificates representing each Selling Member's Ownership Interest, if
any, for cancellation.
6.7 No Restraints. No temporary restraining order, preliminary or
permanent injunction or other order preventing the consummation of the
Transaction will have been issued by any court of competent jurisdiction and
remain in effect, and there will not be any Legal Requirement enacted or deemed
applicable to the Transaction that makes consummation of the Transaction
illegal. All filings, if any, required under the HSR Act shall have been made,
and all applicable waiting periods under the HSR Act shall have expired with no
adverse action having been taken by any applicable Governmental Authority, or
such waiting periods shall have been earlier terminated by the applicable
Governmental Authority pursuant to the HSR Act.
6.8 No Claims or Legal Proceedings. No Person will have filed any claims
or commenced or threatened in writing to commence any Legal Proceeding that may
materially and adversely affect the consummation of the Transaction or the
financial condition, business or operations of the Company.
6.9 Securities Compliance. Each Selling Member shall have completed,
executed and delivered a Member Certification in substantially the form attached
as Exhibit D hereto. Each shareholder of GD shall have completed, executed and
delivered a Shareholder Certification in substantially the form attached as
Exhibit H hereto. Each shareholder of GD that is not an "accredited investor"
shall have appointed a "purchaser representative" in connection with the
Transaction and the acquisition of Parent Common Stock immediately after the
Closing of the Transaction.
SECTION 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY AND SELLERS
The obligations of the Company and Sellers to effect the Transaction and
otherwise consummate the transactions contemplated by this Agreement are subject
to the satisfaction or waiver, at or prior to the Closing, of the following
conditions:
7.1 Accuracy of Representations. All of the representations and warranties
made by Parent in this Agreement (considered collectively), and each of such
representations and warranties (considered individually), will have been
accurate in all material respects as of the date of this Agreement (except that
all representations and warranties that are subject to materiality or Material
Adverse Effect qualifiers shall have been accurate, subject to such qualifiers,
in all respects), and will be accurate in all material respects as of the
Scheduled Closing Time as if made at the Scheduled Closing Time.
7.2 Performance of Covenants. All of the covenants and obligations that
Parent is required to comply with or to perform at or prior to the Closing
(considered collectively), and each of such covenants and obligations
(considered individually), will have been complied with and performed in all
material respects.
A-20
<PAGE> 26
7.3 Documents. The Sellers will have received the following documents:
(a) a legal opinion of Cooley Godward llp, dated as of the Closing Date, in
the form of Exhibit K; and
(b) a certificate executed by Parent's Chief Financial Officer certifying
that (1) each of the representations and warranties set forth in Section 3 is
accurate in all material respects as of the Closing Date as if made on the
Closing Date, (2) that the conditions set forth in Sections 7.1, 7.2, 7.4 and
7.5 and, to his actual knowledge, Section 7.6, have been duly satisfied (the
"Parent Closing Certificate") and (3) all board and stockholder action of Parent
necessary in connection with the issuance of the Parent Common Stock hereunder
has been duly and validly taken.
7.4 Listing. Parent will have filed with Nasdaq a notification form for
listing of additional shares on the Nasdaq National Market for the shares of
Parent Common Stock to be issued in the Transaction (subject to notice of
issuance).
7.5 Investor Rights Agreement. Parent shall have complied with the
requirements of Section 5.8.
7.6 No Restraints. No temporary restraining order, preliminary or
permanent injunction or other order preventing the consummation of the
Transaction will have been issued by any court of competent jurisdiction and
remain in effect, and there will not be any Legal Requirement enacted or deemed
applicable to the Transaction that makes consummation of the Transaction
illegal. All filings, if any, required under the HSR Act shall have been made,
and all applicable waiting periods under the HSR Act shall have expired with no
adverse action having been taken by any applicable Governmental Authority, or
such waiting periods shall have been earlier terminated by the applicable
Governmental Authority pursuant to the HSR Act.
7.7 Distribution of Cash. Notwithstanding anything to the contrary herein,
the Company shall have distributed to the Members, immediately prior to the
Closing Date, the cash, if any, in the Company that is in excess of the sum of
the following items of the Company: (a) any cash that is deferred revenue under
GAAP as of such distribution date, (b) outstanding liabilities, commitments and
other obligations, including invoices and off-balance sheet obligations, that
are past due by more than 30 days, except for good faith disputes; and (c) the
Third Party Expenses (as identified in Section 10.3) incurred that are unpaid at
Closing. The parties hereto agree that, within fifteen (15) business days of the
anticipated Closing Date, and no later than July 10, 2000 (unless otherwise
agreed), Parent, on the one hand, and the Selling Members, on the other hand,
will agree on the amount of the Company's liabilities, commitments and other
obligations described in clause (c) above as of such date (the "Liability
Amount") and, for purposes of the distribution of cash to the Members pursuant
to this Section 7.7, the Company may only distribute to the Members the cash in
the Company in excess of such Liability Amount. Nothing in this Section 7.7
shall be interpreted to require any Selling Member to contribute any amounts to
the Company.
SECTION 8. TERMINATION
8.1 Termination Events. This Agreement may be terminated prior to the
Closing:
(a) by Parent if it has not breached this Agreement and Parent reasonably
determines that the timely satisfaction of any condition set forth in Section 6
has become impossible (other than as a result of any failure on the part of
Parent to comply with or perform any covenant or obligation of Parent set forth
in this Agreement);
(b) by a majority in interest of the Sellers if they have not breached this
Agreement and they reasonably determine that the timely satisfaction of any
condition set forth in Section 7 has become impossible (other than as a result
of any failure on the part of the Company and the Sellers to comply with or
perform any covenant or obligation set forth in this Agreement or in any other
agreement or instrument delivered to Parent or its Representatives);
(c) by Parent if the Closing has not taken place on or before July 31, 2000
(other than as a result of any failure on the part of Parent to comply with or
perform any covenant or obligation of Parent set forth in this Agreement);
provided, however, that such date shall be extended to August 31, 2000 in the
event any of the following "Justified Delays" occur: (a) Parent's proxy
statement to its stockholders in compliance with
A-21
<PAGE> 27
Section 5.10 hereof is reviewed by the SEC and the SEC has not completed its
review in time to enable Parent to reasonably complete the stockholder
solicitation and meeting by July 31, 2000; (b) any filing under the HSR Act is
required and made and the Federal Trade Commission has not issued an order
clearing the Transaction under the HSR Act in time to enable a July 31, 2000
closing; or (c) Parent and/or its Representatives reasonably determine that
Parent's disclosure obligations under applicable federal and state securities
laws, as a result of proposed transactions involving any Member or their
affiliates that is consummated prior to July 15, 2000, require either (i) a
delay in distributing proxy statements to Parent's stockholders in compliance
with Section 5.10 hereof, (ii) an update to a proxy statement already
distributed to Parent's stockholders or already filed with the SEC in compliance
with Section 5.10 hereof, or (iii) a delay in the meeting of Parent's
stockholders at which the Transaction would be approved.
(d) by a majority in interest of the Sellers if the Closing has not taken
place on or before July 31, 2000 (other than as a result of the failure on the
part of the Company and Sellers to comply with or perform any covenant or
obligation set forth in this Agreement or in any other agreement or instrument
delivered to Parent or its Representatives); provided, however, that such date
shall be extended to August 31, 2000 in the event any Justified Delay occurs; or
(e) by the mutual consent of Parent, the Company and a majority in interest
of the Sellers.
8.2 Termination Procedures. If Parent wishes to terminate this Agreement
pursuant to Section 8.1(a) or Section 8.1(c), Parent will deliver to the Company
and Sellers a written notice stating that Parent is terminating this Agreement
and setting forth a brief description of the basis on which Parent is
terminating this Agreement. If the Company and a majority in interest of the
Sellers wish to terminate this Agreement pursuant to Section 8.1(b) or Section
8.1(d), the Company and such Sellers will deliver to Parent a written notice
stating that the Company and Sellers are terminating this Agreement and setting
forth a brief description of the basis on which the Company and Sellers are
terminating this Agreement.
8.3 Special Termination Rights. If the Selling Members have not received
from NBC, on or prior to June 22, 2000, a written notice stating that NBC has
executed with Parent an Amended and Restated Operating Agreement for the
Company, in form and substance reasonably acceptable to NBC, then at any time
after June 22, 2000 and prior to receipt by the Selling Members of such notice,
MediaOne, GD and the Site Operator may notify Parent (in a written notice
executed by all of such parties) of their intent to terminate this Agreement, in
which case this Agreement shall terminate at 5:00 p.m. Central time on the fifth
day (which may be extended by the unanimous agreement of MediaOne, GD and the
Site Operator) after delivery of such notice to Parent (the "Termination Time"),
unless prior to the Termination Time the Selling Members have received the
notice from NBC described above.
8.4 Effect of Termination. If this Agreement is terminated pursuant to
Section 8.1 or 8.3, all further obligations of the parties under this Agreement
will terminate; provided, however, that: (a) neither the Company nor Parent nor
Sellers will be relieved of any obligation or liability arising from any prior
breach by such party of any provision of this Agreement; (b) the parties will,
in all events, remain bound by and continue to be subject to the provisions set
forth in Section 10; and (c) the parties will, in all events, remain bound by
and continue to be subject to Section 5.3.
SECTION 9. INDEMNIFICATION, ETC.
9.1 Survival of Representations, Etc.
(a) The representations and warranties made by the Company and Sellers, on
the one hand, and Parent, on the other hand, will survive the Closing and will
expire on the one year anniversary of the Closing Date (the "Survival Expiration
Date"); provided, however, that if, at any time on or prior to, but not after,
the Survival Expiration Date, any Parent Indemnitee delivers to the Designated
Company Agent (as defined in Section 10.1) or any Selling Member Indemnitee
delivers to Parent a written notice alleging the existence of an inaccuracy in
or a breach of any of the representations and warranties made by the Company or
Sellers or Parent, respectively (and setting forth in reasonable detail the
basis for the belief that such an inaccuracy or breach may exist) and asserting
a claim for recovery under this Section 9 based on such alleged inaccuracy or
A-22
<PAGE> 28
breach, then the claim asserted in such notice will survive the Survival
Expiration Date until such time as such claim is fully and finally resolved.
(b) It is agreed by the parties that any Disclosure Schedule update made
prior to the Closing will be deemed to supplement or amend the Disclosure
Schedule for all purposes under this Agreement (other than determining the
satisfaction of the conditions to Closing set forth in Section 6), including for
purposes of determining the accuracy as of the date of this Agreement of any of
the representations and warranties made by the Company and Sellers or Parent, as
the case may be, in this Agreement. In addition and not by way of limitation,
notwithstanding anything to the contrary in this Agreement or in the documents
contemplated to be executed in connection herewith or in any Disclosure
Schedule, if a party proceeds with Closing and at such time actually knows that
a Disclosure Schedule or a representation or warranty or Closing document is
incorrect or untrue, or a covenant herein has not been complied with, then such
party shall not be entitled to any form of relief or indemnification or damages
for the misrepresentation, noncompliance or breach of which it had actual
knowledge at or prior to the time of Closing.
9.2 Indemnification by each Selling Member.
(a) Subject to the limitations on liability set forth in this Agreement and
in the Escrow Agreement, from and after the Closing Date (but subject to Section
9.1(a)), each Selling Member, severally and not jointly, shall defend,
indemnify, protect and hold harmless each of the Parent Indemnitees from and
against, and will compensate and reimburse each of the Parent Indemnitees for
any losses, damages, liabilities, claims, judgments, settlements, fines, costs
and expenses (including reasonable attorney's fees) ("Damages") to the extent
such Damages are directly or indirectly suffered or incurred by the Parent
Indemnitees (regardless of whether or not such Damages relate to any third-party
claim) and to the extent such Damages arise directly or indirectly from or as a
result of, any inaccuracy in or breach of any representation or warranty set
forth in Section 2.1 by such Selling Member or of the applicable Selling Member
Closing Certificate and any Legal Proceeding relating to any such inaccuracy or
breach (including any Legal Proceeding commenced by the Parent Indemnitees for
the purpose of enforcing any of its rights under this Section 9). As against the
Selling Members, indemnification pursuant to this Section 9.2 shall be the
exclusive remedy available to the Parent Indemnitees for Damages of the type
referred to in the foregoing sentence, provided however that such limitation
shall not apply as against a Selling Member in the event of fraud, willful
misstatements or willful omissions of such Selling Member or any of its
Representatives.
9.3 Indemnification by Parent. From and after the Closing Date (but
subject to Section 9.1(a), Parent shall defend, indemnify, protect and hold
harmless each Selling Member Indemnitee from and against, and will compensate
and reimburse each Selling Member Indemnitee for Damages which are directly or
indirectly suffered or incurred by any Selling Member Indemnitee (regardless of
whether or not such Damages relate to any third-party claim) and which arise
directly from or as a result of, any inaccuracy in or breach of any
representation or warranty set forth in Section 3 by Parent or of Parent's
Closing Certificate and any Legal Proceeding relating to any such inaccuracy or
breach (including any Legal Proceeding commenced for the purpose of enforcing
any rights under this Section 9).
9.4 Indemnification by the Company and Sellers.
(a) Subject to the limitations on liability set forth in this Agreement and
in the Escrow Agreement, from and after the Closing Date (but subject to Section
9.1(a)), the Selling Members (by reason of their approval of the Transaction and
each such Selling Member's acceptance of the consideration provided for in
Section 1.3 of this Agreement), shall defend, indemnify, protect and hold
harmless each of Parent Indemnitees from and against, and will compensate and
reimburse each of Parent Indemnitees for any Damages to the extent such Damages
are directly or indirectly suffered or incurred by any of Parent Indemnitees
(regardless of whether or not such Damages relate to any third-party claim) and
which arise directly or indirectly from, or as a result of: (i) any inaccuracy
in or breach of any representation or warranty set forth in Section 2 (other
than Section 2.1) or in the Selling Members' Closing Certificate (other than
with respect to Section 2.1); (ii) any breach of any covenant or obligation of
the Company and Sellers under this Agreement (including the covenants set forth
in Section 1.7 and Sections 4 and 5); (iii) any claim by any individual or
entity of a membership interest or other security in the Company or in
connection with any
A-23
<PAGE> 29
agreement between the Company and any holder of a membership interest or other
security in the Company (other than the matters contemplated by this Agreement
or disclosed in the Disclosure Schedule); provided, however, that any claim
under this subsection (iii) relating to the Non-Selling Member's membership
interest shall be resolved between Parent and the Non-Selling Member and any
claim relating to a specific Selling Member shall be resolved between Parent and
such Selling Member pursuant to Section 9.2 hereof, and such claims shall not be
covered by this Section 9.4(a)(iii); or (iv) any Legal Proceeding relating to
any inaccuracy or breach of the type referred to in clause "(i)," "(ii)" or
"(iii)" above (including any Legal Proceeding commenced by Parent Indemnitees
for the purpose of enforcing any of its rights under this Section 9). As against
the Company and the Sellers, indemnification pursuant to this Section 9.4,
subject to the limitations on liability set forth in this Agreement and in the
Escrow Agreement, shall be the exclusive remedy available to Parent Indemnitees
pursuant to this Agreement, provided however that such limitation shall not
apply in the event of fraud of the Company, Sellers or any of their
Representatives.
9.5 Threshold. Notwithstanding any other provisions of this Agreement,
Parent Indemnitees and Selling Member Indemnities shall be entitled to
indemnification only if the aggregate Damages that have been directly or
indirectly suffered or incurred by any one or more of such Indemnitees exceeds
Two Hundred Fifty Thousand Dollars ($250,000) (the "Threshold Amount"), provided
that at such time as the amount to which such Indemnitees are entitled to be
indemnified exceeds the Threshold Amount, such Indemnitees shall be entitled to
be indemnified up to the full Damages including the Threshold Amount, subject to
the limitations on liability set forth in this Agreement and the Escrow
Agreement. The Threshold Amount shall not apply to any Damages arising out of
fraud of the Company, Sellers, Parent or any of their Representatives or any
claim under Section 9.2 and 9.4(a)(iii).
9.6 No Contribution. The Company and Sellers waive, acknowledge and agree
that they will not have and will not exercise or assert (or attempt to exercise
or assert), any right of contribution, right of indemnity or other right or
remedy against the Company after the Closing in connection with any
indemnification obligation or any other liability to which the Company and
Sellers may become subject under or in connection with this Agreement or the
Company Closing Certificate.
9.7 Defense of Third-Party Claims. In the event of the assertion or
commencement by any Person of any claim or Legal Proceeding (whether against the
Company, against Parent or against any other Person) with respect to which an
indemnifying party may become obligated to hold harmless, indemnify, compensate
or reimburse any indemnified party pursuant to this Section 9, the indemnifying
party(ies) will have the right, at its election, to proceed with the defense of
such claim or Legal Proceeding with counsel of its own choosing. Such election
must be made within thirty (30) days of the notice of claim or Legal Proceeding.
If the indemnified party so proceeds with the defense of any such claim or Legal
Proceeding:
(a) all reasonable expenses relating to the defense of such claim or Legal
Proceeding will be indemnifiable under Section 9.2, Section 9.3 or Section
9.4(a)(iv);
(b) the Designated Company Agent (defined below) or Parent, as applicable,
will make available to the indemnified party any documents and materials in his
possession or control that may be necessary to the defense of such claim or
Legal Proceeding; and
(c) the indemnified party will have the right to settle, adjust or
compromise such claim or Legal Proceeding only to the extent any settlement,
adjustment or compromise involves sums of money with the consent of the
Designated Company Agent, pursuant to Section 10.1, or Parent, as applicable;
provided, however, that such consent will not be unreasonably withheld.
Parent will give the Designated Company Agent prompt notice of the commencement
of any such Legal Proceeding against Parent or the Company, and the Designated
Company Agent will give Parent prompt notice of the commencement of any such
Legal Proceeding against the Company or the Selling Members.
A-24
<PAGE> 30
9.8 Limitations on Liability.
(a) The liability of the Selling Members pursuant to this Agreement,
including, but not limited to, this Section 9, shall in the aggregate be limited
as follows:
(i) The liability of each Selling Member with respect to fraud or any
breach by such Selling Member of the representations in Section 2.1 shall
be limited in all respects to Parent's actual Damages resulting thereby,
which may include, but is not limited to, any of the following: (a) the
fair market value as of the Closing Date of the Parent Company Stock
received by such Selling Member on the Closing Date pursuant to this
Agreement (including any such shares subject to the Escrow Agreement), (b)
the fair market value as of the enforcement of the remedy for such breach
of the Parent Company Stock received by such Selling Member on the Closing
Date pursuant to this Agreement (including any such shares subject to the
Escrow Agreement), (c) the fair market value of the ownership interest in
the Company claimed to be owned by a third party on the Closing Date or (d)
the fair market value of the ownership interest in the Company claimed to
be owned by a third party as of the enforcement of the remedy for such
breach.
(ii) The sole remedy of Parent and Parent Indemnitees for, and the
liability of the Company and the Selling Members for, all other matters
under or related to this Agreement or any other agreement or document
related hereto, including, but not limited to, breaches of representations
and warranties (other than those set forth in Section 2.1) and covenants
under this Agreement or the Company Closing Certificate or any Selling
Member Closing Certificate shall be limited to the right of Parent to
exercise its rights under the Escrow Agreement (subject to the dollar
limits set forth in the Escrow Agreement).
(b) The liability of Parent pursuant to this Agreement, including, but not
limited to, this Section 9, with respect to any breach by Parent of the
representations in Section 3 shall be limited in all respects to the higher of
(a) the fair market value as of the Closing Date of the Parent Company Stock
issued by Parent on the Closing Date pursuant to this Agreement (including any
such shares subject to the Escrow Agreement) and (b) the fair market value as of
the enforcement of the remedy for such breach of the Parent Company Stock issued
by Parent on the Closing Date pursuant to this Agreement (including any such
shares subject to the Escrow Agreement); provided, however, that no limitation
on liability set forth in this Section 9.8(b) shall apply in the event of fraud.
9.9 Tax Contests. The Selling Members (and Non-Selling Member, as
applicable) shall have the sole right to conduct any tax audit or other tax
contest relating to tax returns of the Company for tax periods involving periods
ending on or prior to the Closing Date.
9.10 Exercise of Remedies by Parent Indemnitees Other than Parent. No
Parent Indemnitee (other than Parent or any successor thereto or assign thereof)
will be permitted to assert any indemnification claim or exercise any other
remedy under this Agreement unless Parent (or any successor thereto or assign
thereof) will have consented to the assertion of such indemnification claim or
the exercise of such other remedy.
SECTION 10. MISCELLANEOUS PROVISIONS
10.1 Designated Agent.
(a) The Company and Sellers (by reason of the approval of the Transaction
by the Sellers and the acceptance of the consideration provided for in Section
1.3 of this Agreement), hereby irrevocably appoint Danny Mills as their agent
for purposes of Section 9 (other than Section 9.2) (the "Designated Company
Agent"), and Danny Mills hereby accepts its appointment as the Designated
Company Agent.
(b) Sellers authorize the Designated Company Agent to act as their duly
constituted attorney-in-fact in connection with the Escrow Agreement. Sellers
acknowledge and agree that, except as otherwise provided in this Agreement and
the Escrow Agreement, any decision, act, consent or instruction of the
Designated Company Agent with respect to the Escrow Agreement shall constitute a
decision, act, consent or instruction of the Sellers with respect to the Escrow
Agreement and shall be final, binding and conclusive on the Sellers. Parent will
be entitled to deal exclusively with the Designated Company Agent on all matters
relating to
A-25
<PAGE> 31
Section 9 (other than Section 9.2), and will be entitled to rely conclusively
(without further evidence of any kind whatsoever) on any document executed or
purported to be executed on behalf of the Company and the Sellers by the
Designated Company Agent, and on any other action taken or purported to be taken
on behalf of the Company and the Sellers by the Designated Company Agent, as
fully binding upon the Company.
(c) Sellers agree to indemnify and hold harmless the Designated Company
Agent against and in respect of any Damages incurred by the Designated Company
Agent in respect of, as a result of, or in connection with the performance of
its duties hereunder or under the Escrow Agreement and any related agreements or
documents referenced herein or therein in good faith and without gross
negligence or willful misconduct.
(d) If the person acting as the representative of the Designated Company
Agent should die, become disabled or otherwise be unable to fulfill his
responsibilities as agent of the Company and Sellers, then a majority in
interest of the Sellers shall appoint a new representative to carry out the role
as the Designated Company Agent, and will promptly notify Parent of the identity
of such successor. Any such successor will become the "Designated Company Agent"
for purposes of Section 9 and this Section 10.1. Notwithstanding the foregoing,
the Designated Company Agent has no authority to bind a Selling Member in
connection with any matters relating to Section 9.2.
10.2 Further Assurances. Each party hereto will execute and cause to be
delivered to each other party hereto such instruments and other documents, and
will take such other actions, as such other party may reasonably request (prior
to, at or after the Closing) for the purpose of carrying out or evidencing any
of the transactions contemplated by this Agreement.
10.3 Fees and Expenses. Each party to this Agreement will bear and pay all
fees, costs and expenses (including legal, accounting, financial advisory and
consulting fees) that have been incurred or that are incurred by such party in
connection with the transactions contemplated by this Agreement, including all
fees, costs and expenses incurred by such party in connection with or by virtue
of (a) the investigation and review conducted by Parent and its Representatives
with respect to the Company's business (and the furnishing of information to
Parent and its Representatives in connection with such investigation and
review), (b) the negotiation, preparation and review of this Agreement
(including the Disclosure Schedule) and all agreements, certificates, opinions
and other instruments and documents delivered or to be delivered in connection
with the transactions contemplated by this Agreement, (c) the preparation and
submission of any filing or notice required to be made or given in connection
with any of the transactions contemplated by this Agreement, and the obtaining
of any Consent required to be obtained in connection with any of such
transactions, and (d) the consummation of the Transaction (collectively, the
"Third Party Expenses"). Notwithstanding the foregoing, if the Transaction is
consummated, the Selling Members will assume, on a pro rata basis, the Third
Party Expenses incurred by the Company, which Third Party Expenses of the
Selling Members and the Company can be paid by the Company at or prior to the
Closing (with the Selling Members' Third Party Expenses being paid from funds
that would otherwise be distributable to them by the Company).
10.4 Attorneys' Fees. If any action or proceeding relating to this
Agreement or the enforcement of any provision of this Agreement is brought
against any party hereto, the prevailing party will be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
10.5 Notices. Any notice or other communication required or permitted to
be delivered to any party under this Agreement will be in writing and will be
deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile telephone number set forth beneath the name of such party
below (or to such other address or
A-26
<PAGE> 32
facsimile telephone number as such party will have specified in a written notice
given to the other parties hereto):
IF TO PARENT:
Quokka Sports, Inc.
525 Brannan Street
San Francisco, CA 94107
Fax: (415) 908-4069
Attention: General Counsel
With a copy to:
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, CA 94111
Fax: (415) 951-3699
Attention: Kenneth L. Guernsey, Esq.
IF TO THE COMPANY:
Golf.com, L.L.C.
133 Fayetteville Street Mall, 6th Floor
Raleigh, North Carolina 27601
Attention: Chief Executive Officer
With a copy to:
Fulbright & Jaworski L.L.P.
2200 Ross Avenue, 28th Floor
Dallas, Texas 75201
Fax: 214-855-8200
Attention: Kenneth L. Stewart, Esq.
IF TO THE SELLING MEMBERS:
GolfData Corporation
4639 N. 20th Place
Arlington, Virginia 22207
Attn: Alex Miceli
With a copy to:
Satex Investment Partners
10010 San Pedro, Suite 360
San Antonio, Texas 78216
Attn: Danny Mills
Media One Interactive Services, Inc.
9000 E. Nichols Avenue, Suite 100
Englewood, Colorado 80112
Attn: Director of Finance
Fax: (303) 705-5163
A-27
<PAGE> 33
With a copy to:
Media One Group, Inc.
188 Inverness Drive
Englewood, Colorado 80112
Attn: General Counsel
The New York Times Magazine Group, Inc.
5520 Park Avenue
Trumbull, Connecticut
Attn: Robert Carney
Fax: (203) 373-7170
With a copy to:
The New York Times Company
229 West 43rd Street
New York, New York 10036
Attn: Secretary
Fax: (212) 556-4634
Total Sports Inc.
133 Fayetteville Street Mall, 6th Floor
Raleigh, North Carolina 27601
Attn: Frank Daniels, III
Fax: (919) 755-8080
With a copy to:
J. Christopher Lynch
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
Fax: (919) 778-4865
Otto Candies
P.O. Box 25
Highway 90
Des Allemands, Louisiana 70030
Attn: Paul Candies
Fax: 504-469-7740
IF TO THE NON-SELLING MEMBER:
NBC -- Golf.com Holding, Inc.
30 Rockefeller Plaza
New York, New York 10012
Attn: Edmond Sanctis
Fax: (212) 245-4622
10.6 Confidentiality. Without limiting the generality of anything
contained in Section 5.4, on and at all times after the Closing Date, each party
hereto will keep confidential, and will not use or disclose to any other Person,
any non-public document or other non-public information in such party's
possession that relates to the business of the Company or Parent. Information
will not be considered confidential if (a) the information was in the public
domain at the time it was communicated to the recipient or its Representatives,
(b) the information entered the public domain after it was communicated to the
recipient or its Representatives, through no fault of the recipient or its
Representatives, (c) the information was in the recipient's or its
Representative's possession, free of any obligation of confidence, at the time
it was communicated to the
A-28
<PAGE> 34
recipient or its Representatives, (d) the information was rightfully
communicated to the recipient or its Representatives by a third party, free of
any obligation of confidence, subsequent to the time it was communicated to the
recipient or its Representatives, (e) the information was independently
developed by recipient or its Representatives or (f) the information is required
to be disclosed pursuant to a court order or pursuant to legal, regulatory or
similar process.
10.7 Time of the Essence. Time is of the essence of this Agreement.
10.8 Headings. The headings contained in this Agreement are for
convenience of reference only, will not be deemed to be a part of this Agreement
and will not be referred to in connection with the construction or
interpretation of this Agreement.
10.9 Counterparts. This Agreement may be executed in several counterparts,
each of which will constitute an original and all of which, when taken together,
will constitute one agreement.
10.10 Governing Law. This Agreement will be construed in accordance with,
and governed in all respects by, the internal laws of the State of Delaware
(without giving effect to principles of choice of law or conflict of laws).
10.11 Successors and Assigns. This Agreement will be binding upon: the
Company and its successors and assigns (if any); and Parent and its successors
and assigns (if any). This Agreement will inure to the benefit of: the Company,
the Sellers, Parent, the other Parent Indemnitees and Selling Member
Indemnitees; and the respective successors and assigns (if any) of the
foregoing. After Closing, Parent may freely assign any or all of its rights
under this Agreement (including its indemnification rights under Section 9), in
whole or in part, to any successor to Parent's business without obtaining the
consent or approval of any other party hereto or of any other Person.
10.12 Remedies Cumulative; Specific Performance. Except as set forth in
Section 9, the rights and remedies of the parties hereto will be cumulative (and
not alternative). The parties to this Agreement agree that, in the event of any
breach or threatened breach by any party to this Agreement of any covenant,
obligation or other provision set forth in this Agreement for the benefit of any
other party to this Agreement, such other party will be entitled (in addition to
any other remedy that may be available to it) to (a) a decree or order of
specific performance or mandamus to enforce the observance and performance of
such covenant, obligation or other provision, and (b) an injunction restraining
such breach or threatened breach.
10.13 No Waiver.
(a) No failure on the part of any Person to exercise any power, right,
privilege or remedy under this Agreement, and no delay on the part of any Person
in exercising any power, right, privilege or remedy under this Agreement, will
operate as a waiver of such power, right, privilege or remedy; and no single or
partial exercise of any such power, right, privilege or remedy will preclude any
other or further exercise thereof or of any other power, right, privilege or
remedy.
(b) No Person will be deemed to have waived any claim arising out of this
Agreement, or any power, right, privilege or remedy under this Agreement, unless
the waiver of such claim, power, right, privilege or remedy is expressly set
forth in a written instrument duly executed and delivered on behalf of such
Person; and any such waiver will not be applicable or have any effect except in
the specific instance in which it is given.
10.14 Amendments. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed and
delivered on behalf of all of the parties hereto.
10.15 Severability. In the event that any provision of this Agreement, or
the application of any such provision to any Person or set of circumstances,
will be determined to be invalid, unlawful, void or unenforceable to any extent,
the remainder of this Agreement, and the application of such provision to
Persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, will not be impaired or otherwise
affected and will continue to be valid and enforceable to the fullest extent
permitted by law.
A-29
<PAGE> 35
10.16 Parties in Interest. None of the provisions of this Agreement is
intended to provide any rights or remedies to any Person other than the parties
hereto and their respective successors and assigns (if any).
10.17 Entire Agreement. This Agreement and the other agreements referred
to herein set forth the entire understanding of the parties hereto relating to
the subject matter hereof and thereof and supersede all prior agreements and
understandings among or between any of the parties relating to the subject
matter hereof and thereof; provided, however, that the confidentiality letter
agreement executed on behalf of Parent and the Company effective as of April 3,
2000 will not be superseded by this Agreement and will remain in effect in
accordance with its terms until the earlier of (a) the Closing Date, or (b) the
date on which such Mutual Non-Disclosure Agreement is terminated in accordance
with its terms.
10.18 Construction.
(a) For purposes of this Agreement, whenever the context requires: the
singular number will include the plural, and vice versa; the masculine gender
will include the feminine and neuter genders; the feminine gender will include
the masculine and neuter genders; and the neuter gender will include the
masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party will not be
applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including," and
variations thereof, will not be deemed to be terms of limitation, but rather
will be deemed to be followed by the words "without limitation."
(d) Except as otherwise indicated, all references in this Agreement to
"Sections" and "Exhibits" are intended to refer to Sections of this Agreement
and Exhibits to this Agreement.
[Signature Page Follows on Next Page]
A-30
<PAGE> 36
The parties hereto have caused this PURCHASE AGREEMENT AND PLAN OF
REORGANIZATION to be executed and delivered as of June , 2000.
PARENT:
QUOKKA SPORTS, INC.,
a Delaware corporation
Signature:
Printed Name:
Title:
THE COMPANY:
GOLF.COM, L.L.C.,
a Delaware limited liability company
Signature:
Alex Miceli
President
SELLERS:
GOLFDATA CORPORATION,
a Texas corporation
Signature:
Printed Name:
Title:
THE NEW YORK TIMES COMPANY
MAGAZINE GROUP, INC.,
a Delaware corporation
Signature:
Printed Name:
Title:
MEDIA ONE INTERACTIVE SERVICES, INC.,
a Colorado corporation
Signature:
Printed Name:
Title:
A-31
<PAGE> 37
TOTAL SPORTS INC.,
a Delaware corporation
Signature:
Printed Name:
Title:
OTTO CANDIES, INC.
Signature:
Printed Name:
Title:
A-32
<PAGE> 38
The undersigned NBC -- Golf.com Holding, Inc., a Delaware corporation and
successor-in-interest to NBC Multimedia, Inc., a Delaware corporation ("NBC")
has executed this Agreement in the space provided below to (i) subject to the
conditions set forth below, hereby approve and consent to the purchase and other
acquisition by Purchaser of the Ownership Interests of the Selling Members as
contemplated by this Agreement, and the withdrawal of the Selling Members as
members of the Company and the substitution therefor and admission of Purchaser
as a member of the Company and (ii) make the representations, warranties and
covenants set forth below.
The approval and consent of NBC set forth in clause (i) above is
conditioned on, and will not be effective unless, an Amended and Restated
Operating Agreement for the Company, in form and substance reasonably acceptable
to NBC, is executed by and between NBC and Parent.
NBC hereby represents and warrants to the Selling Members that it in good
faith believes that it has already reached agreement in substance with Parent
regarding the material terms of the Amended and Restated Operating Agreement.
NBC covenants and agrees with the Selling Members that: (i) it will negotiate in
good faith with Parent to complete and execute an Amended and Restated Operating
Agreement, in form and substance reasonably acceptable to NBC, on or prior to
June 22, 2000, and (ii) will promptly notify the Selling Members in writing if
and when such agreement is executed, in which case the delivery of such notice
by NBC shall be conclusive evidence that the condition to NBC's approval and
consent set forth above has been satisfied and that the approval and consent is
valid and binding on NBC.
NBC hereby acknowledges that it has received good and valuable
consideration for its consent, representations, warranties and covenants set
forth above, and that the Selling Members are relying on the consent,
representations, warranties and covenants set forth above in entering into this
Agreement and the documents contemplated hereby or to be executed in connection
herewith.
NBC -- GOLF.COM HOLDING, INC.,
a Delaware corporation and
successor-in-interest to NBC
Multimedia, Inc., a Delaware
corporation
Signature:
Printed Name:
Title:
The undersigned, Danny Mills, has executed this Agreement in the space
provided below for the purposes of Section 10.1 of the Agreement.
DESIGNATED COMPANY AGENT:
Signature:
Danny Mills
A-33
<PAGE> 39
AMENDMENT TO THE
PURCHASE AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDMENT TO THE PURCHASE AGREEMENT AND PLAN OF REORGANIZATION (the
"Amendment") is entered into to be effective as of the 31st day of July, 2000,
by and among Quokka Sports, Inc., a Delaware corporation ("Parent"); Golf.com,
L.L.C., a Delaware limited liability company (the "Company"), and each of the
following members of the Company: Total Sports Inc., a Delaware corporation,
GolfData Corporation, a Texas corporation, The New York Times Company Magazine
Group, Inc., a Delaware corporation, Otto Candies L.L.C., and Media One
Interactive Services, Inc., a Colorado corporation (each, a "Selling Member" and
collectively, the "Sellers" or "Selling Members") pursuant to that certain
Purchase Agreement and Plan of Reorganization dated June 8, 1999 (the
"Agreement"), by and among Parent, the Company, and the Selling Members.
WHEREAS, Section 10.4 of the Agreement provides that the Agreement may not
be amended, modified, altered or supplemented other than by means of a written
instrument duly executed and delivered on behalf of all of the parties thereto;
and
WHEREAS, the parties wish to amend the Agreement and its exhibits to
correct a clerical error made at the time of the execution of the Agreement,
whereby the selling entity under the Agreement should have been Otto Candies
L.L.C. rather than Otto Candies Inc., as Otto Candies, L.L.C. is successor in
interest to Otto Candies, Inc. by a merger effective midnight, December 31,
1998;
NOW, THEREFORE, in consideration of the promises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties mutually agree:
1. AMENDMENT
A. That Otto Candies L.L.C. be substituted for Otto Candies Inc. as a
party to the Agreement and the exhibits thereto and that all references to Otto
Candies Inc. in the Agreement and the exhibits thereto be changed to Otto
Candies L.L.C.; and
B. That the termination date of the Agreement be changed to September 30,
2000 and the extended termination date of the Agreement in the event of a
Justified Delay be changed to October 31, 2000, such that Subsections 8.1(c) and
(d) are amended in their entirety to read as follows:
(c) by Parent if the Closing has not taken place on or before
September 30, 2000 (other than as a result of any failure on the part of
Parent to comply with or perform any covenant or obligation of Parent set
forth in this Agreement); provided, however, that such date shall be
extended to October 31, 2000 in the event any of the following "Justified
Delays" occur: (i) Parent's proxy statement to its stockholders in
compliance with Section 5.10 hereof is reviewed by the SEC and the SEC has
not completed its review in time to enable Parent to reasonably complete
the stockholder solicitation and meeting by September 30, 2000; or (ii) any
filing under the HSR Act is required and made and the Federal Trade
Commission has not issued an order clearing the Transaction under the HSR
Act in time to enable a September 30, 2000 closing;
(d) by a majority in interest of the Sellers if the Closing has not
taken place on or before September 30, 2000 (other than as a result of the
failure on the part of the Company and Sellers to comply with or perform
any covenant or obligation set forth in this Agreement or in any other
agreement or instrument delivered to Parent or its Representatives);
provided, however, that such date shall be extended to October 31, 2000 in
the event any Justified Delay occurs.
2. MISCELLANEOUS
A. Governing Law. This Amendment shall be governed in all respects by the
internal laws of the State of Delaware.
B. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which,
together, shall constitute one and the same instrument.
A-34
<PAGE> 40
C. Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
D. Titles and Subtitles. The titles and subtitles used in this Amendment
are for convenience only and are not to be considered in construing or
interpreting this Amendment.
[Signature Pages Follow]
A-35
<PAGE> 41
The foregoing AMENDMENT TO THE PURCHASE AGREEMENT AND PLAN OF
REORGANIZATION is hereby executed and consented to effective as of the date
first above written.
PARENT:
QUOKKA SPORTS, INC.,
a Delaware corporation
Signature:
Printed Name:
Title:
THE COMPANY:
GOLF.COM, L.L.C.,
a Delaware limited liability company
Signature:
Alex Miceli
President
SELLERS:
GOLFDATA CORPORATION,
a Texas corporation
Signature:
Printed Name:
Title:
THE NEW YORK TIMES COMPANY
MAGAZINE GROUP, INC.,
a Delaware corporation
Signature:
Printed Name:
Title:
MEDIA ONE INTERACTIVE SERVICES, INC.,
a Colorado corporation
Signature:
Printed Name:
Title:
A-36
<PAGE> 42
TOTAL SPORTS INC.,
a Delaware corporation
Signature:
Printed Name:
Title:
OTTO CANDIES, L.L.C., AS SUCCESSOR IN
INTEREST TO OTTO CANDIES, INC.
Signature:
Printed Name:
Title:
A-37
<PAGE> 43
EXHIBIT A
CERTAIN DEFINITIONS
For purposes of the Agreement (including this Exhibit A):
Acquisition Transaction. "Acquisition Transaction" will mean any
transaction involving:
(a) the sale, license, disposition or acquisition of all or substantially
all of the Company's business or assets;
(b) the issuance, disposition or acquisition of (i) any membership interest
or other security of the Company, (ii) any option, call, warrant or right
(whether or not immediately exercisable) to acquire any membership interest or
other security of the Company, or (iii) any security, instrument or obligation
that is or may become convertible into or exchangeable for any membership
interest or other security of the Company; or
(c) any merger, consolidation, business combination, reorganization or
similar transaction involving the Company.
Agreement. "Agreement" will mean the Purchase Agreement and Plan of
Reorganization to which this Exhibit A is attached (including the Disclosure
Schedule), as it may be amended from time to time.
Company Contract. "Company Contract" will mean any current Contract: (a) to
which the Company is a party; or (b) by which the Company or any of its assets
is bound or under which the Company has any obligation.
Company Proprietary Asset. "Company Proprietary Asset" will mean any
Proprietary Asset owned by the Company.
Consent. "Consent" will mean any approval, consent, ratification,
permission, waiver or authorization (including any Governmental Authorization).
Contract. "Contract" will mean any written, oral or other agreement,
contract, subcontract, lease, instrument, note, warranty, insurance policy,
benefit plan or legally binding commitment or undertaking of any nature.
Damages. "Damages" will include any loss, damage, injury, liability, claim,
demand, settlement, judgment, award, fine, penalty, Tax, fee (including
reasonable attorneys' fees), charge, cost (including costs of investigation) or
expense of any nature, but specifically excluding any consequential damages or
loss of profits.
Disclosure Schedule. "Disclosure Schedule" will mean the schedule (dated as
of the date of the Agreement) delivered to Parent or its Representatives on
behalf of the Company.
Encumbrance. "Encumbrance" will mean any lien, pledge, hypothecation,
charge, mortgage, security interest, encumbrance, claim, infringement, right of
first refusal, preemptive right, community property interest or similar
restriction (including any restriction on the voting of any security, any
restriction on the transfer of any security or other asset).
Entity. "Entity" will mean any corporation (including any non-profit
corporation), general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, company (including any limited
liability company or joint stock company), firm or other enterprise,
association, organization or entity.
Exchange Act. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
Governmental Authorization. "Governmental Authorization" will mean any
permit, license, certificate, franchise, permission, clearance, registration,
qualification or authorization issued, granted, given or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
Governmental Body. "Governmental Body" will mean any: (a) nation, state,
commonwealth, province, territory, county, municipality, district or other
jurisdiction of any nature; (b) federal, state, local, municipal, foreign or
other government; or (c) governmental or quasi-governmental authority of any
nature (including
A-38
<PAGE> 44
any governmental division, department, agency, commission, instrumentality,
official, organization, unit, body or Entity and any court or other tribunal).
Indemnitees. "Indemnitees" will mean the Parent Indemnitees and/or Selling
Member Indemnitees, as the context requires.
Knowledge. "Knowledge", with respect to the Selling Members under Section
2.1 of this Agreement, means the actual knowledge of any present member of the
senior management of such Selling Member. "Knowledge", with respect to the
Selling Members and/or the Company for all other matters, means the actual
knowledge of any present member of the board of managers of the Company (other
than the members appointed by NBC: Lauren Donovan and Kevin Monaghan), any
present officer and employee of the Company (other than David Shedloski),
present senior management of Site Operator and present www.golf.com site editors
of Site Operator. With respect to Parent, "Knowledge" means the actual knowledge
of senior management of Parent.
Legal Proceeding. "Legal Proceeding" will mean any action, suit,
litigation, arbitration, proceeding (including any civil, criminal,
administrative, investigative or appellate proceeding), hearing, inquiry, audit,
examination or investigation commenced, brought, conducted or heard by or
before, or otherwise involving, any court or other Governmental Body or any
arbitrator or arbitration panel.
Legal Requirement. "Legal Requirement" will mean any federal, state, local,
municipal, foreign or other law, statute, constitution, principle of common law,
resolution, ordinance, code, edict, decree, rule, regulation, ruling or
requirement issued, enacted, adopted, promulgated, implemented or otherwise put
into effect by or under the authority of any Governmental Body.
Material Adverse Effect. A violation or other matter will be deemed to have
a "Material Adverse Effect" on the Company if such violation or other matter
would have a material adverse effect on the Company's business, condition,
assets, liabilities, operations, financial performance or prospects, but
"Material Adverse Effect" shall not include any adverse effects of general
economic conditions or industry trends.
Parent Indemnitees. "Parent Indemnitees" will mean the following Persons:
(a) Parent; (b) Parent's current and future affiliates (including, after the
Closing Date, the Company); (c) the respective Representatives of the Persons
referred to in clauses "(a)" and "(b)" above; and (d) the respective successors
and assigns of the Persons referred to in clauses "(a)", "(b)" and "(c)" above;
provided, however, that the Selling Members immediately prior to the Closing
Date will not be deemed to be "Parent Indemnitees."
Person. "Person" will mean any individual, Entity or Governmental Body.
Proprietary Asset. "Proprietary Asset" will mean any: (a) registered
patent, patent application, trademark (whether registered or unregistered),
trademark application, trade name, fictitious business name, service mark
(whether registered or unregistered), service mark application, copyright
(whether registered or unregistered), copyright application, maskwork, maskwork
application, trade secret, know-how, customer list, franchise, system, computer
software, computer program, invention, design, blueprint, engineering drawing,
proprietary product, technology, proprietary right, domain name or other
intellectual property right or intangible asset, including, but not limited to,
the domain name www.golf.com; or (b) right to use or exploit any of the
foregoing.
Representatives. "Representatives" will mean officers, directors,
employees, agents, attorneys, accountants, advisors and representatives.
SEC. "SEC" will mean the United States Securities and Exchange Commission.
Securities Act. "Securities Act" will mean the Securities Act of 1933, as
amended.
Selling Member Indemnitee. "Selling Member Indemnitee" will mean the
following persons: (a) any Selling Member; (b) any Selling Member's current and
future affiliates; (c) the respective Representatives of
A-39
<PAGE> 45
the Persons referred to in clauses "(a)" and "(b)" above; and (d) the respective
successors and assigns of the Persons referred to in clauses "(a)", "(b)" and
"(c)" above, including, in the case of GD, its shareholders.
Tax. "Tax" will mean any tax (including any income tax, franchise tax,
capital gains tax, gross receipts tax, value-added tax, surtax, excise tax, ad
valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business
tax, withholding tax or payroll tax), levy, assessment, tariff, duty (including
any customs duty), deficiency or fee, and any related charge or amount
(including any fine, penalty or interest), imposed, assessed or collected by or
under the authority of any Governmental Body.
Tax Return. "Tax Return" will mean any return (including any information
return), report, statement, declaration, estimate, schedule, notice,
notification, form, election, certificate or other document or information filed
with or submitted to, or required to be filed with or submitted to, any
Governmental Body in connection with the determination, assessment, collection
or payment of any Tax or in connection with the administration, implementation
or enforcement of or compliance with any Legal Requirement relating to any Tax.
A-40
<PAGE> 46
EXHIBIT B
OWNERSHIP INTERESTS
<TABLE>
<CAPTION>
OWNERSHIP PERCENTAGE PERCENTAGE
INTERESTS OF TOTAL SHARES OF PARENT OF TOTAL
IN THE OWNERSHIP COMMON STOCK SHARES TO
COMPANY INTERESTS TO BE ISSUED BE ISSUED
--------- ---------- ---------------- ----------
<S> <C> <C> <C> <C>
SELLING MEMBERS
GolfData Corporation.............................. 48.5 29.57% 1,626,472 41.81%
Total Sports Inc.................................. 41.0 25.00% 1,375,168 35.35%
Media One Interactive Services, Inc............... 19.5 11.89% 653,934 16.81%
The New York Times Company Magazine Group, Inc.... 5.0 3.05% 167,665 4.31%
Otto Candies, Inc................................. 2.0 1.22% 66,911 1.72%
----- ------ --------- ------
Total Selling Member Units/Shares
Issued................................ 116.0 70.73% 3,890,150 100.00%
===== ====== ========= ======
NON-SELLING MEMBERS
NBC -- Golf.com Holding, Inc., as
successor-in-interest to NBC Multimedia,
Inc. ........................................... 48.0 29.27% N/A N/A
Total Non-Selling Member Units.......... 48.0 29.27% N/A N/A
Totals.................................. 164.0 100.00%
</TABLE>
A-41
<PAGE> 47
EXHIBIT C
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made and entered into as of
, 2000 by and among: QUOKKA SPORTS, INC., a Delaware corporation
("Parent"), the members of GOLF.COM, L.L.C., a Delaware limited liability
company (the "Company"), identified on Exhibit A hereto (the "Selling Members"),
Danny Mills, as the designated company agent appointed pursuant to the Purchase
Agreement ("Designated Company Agent"), and STATE STREET BANK AND TRUST COMPANY
of California, N.A., a national banking association (the "Escrow Agent").
RECITALS
A. Parent, the Selling Members and the Company have entered into a Purchase
Agreement and Plan of Reorganization dated as of June 8, 2000 (the "Purchase
Agreement"), pursuant to which Parent will purchase or otherwise acquire from
each Selling Member such Selling Member's Ownership Interest in the Company.
B. The Purchase Agreement contemplates the establishment of an escrow
arrangement to secure the indemnification and other obligations of the Company
and Selling Members under the Purchase Agreement.
C. Pursuant to Section 10.1 of the Purchase Agreement and Section 10 of
this Agreement, the Selling Members have irrevocably appointed Danny Mills, as
representative, to serve as Designated Company Agent for, among other things,
all matters set forth in Section 9 of the Purchase Agreement (other than Section
9.2 thereof).
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. Defined Terms. Capitalized terms used in this Agreement and not
otherwise defined shall have the meanings given to them in the Purchase
Agreement, a copy of which is attached hereto.
2. Escrow and Indemnification.
(a) Shares and Stock Powers Placed in Escrow. On the Closing Date, which
shall be set forth in a written notice by Parent and Designated Company Agent to
Escrow Agent: (i) Parent shall issue and deliver to Escrow Agent certificates
for shares of Parent Common Stock registered in the names of, and in the amounts
with respect to, the Selling Members as set forth on Exhibit A hereto,
evidencing the shares of Parent Common Stock to be held in escrow in accordance
with this Agreement and containing the following legend: "THE SHARES REPRESENTED
BY THIS CERTIFICATE ARE SUBJECT TO AN ESCROW AGREEMENT, DATED AS OF
, 2000, BY AND AMONG QUOKKA SPORTS, INC., CERTAIN MEMBERS OF
GOLF.COM, L.L.C. IDENTIFIED THEREIN, A DESIGNATED COMPANY AGENT IDENTIFIED
THEREIN AND STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A." (the
"Escrow Legend") and (ii) each of the Selling Members shall deliver to Escrow
Agent five original "assignments separate from certificate" ("Stock Powers")
endorsed by each such Selling Member in blank with signatures guaranteed by a
commercial bank or by a member of the New York Stock Exchange. The shares of
Parent Common Stock being held in escrow pursuant to this Agreement (the "Escrow
Shares") shall constitute an escrow fund (the "Escrow Fund") with respect to the
indemnification obligations of the Company and the Selling Members under the
Purchase Agreement. The Escrow Fund shall be held as a trust fund and shall not
be subject to any lien, attachment, trustee process or any other judicial
process of any creditor of any Selling Member or of any party hereto. The Escrow
Agent agrees to accept delivery of the Escrow Fund and Stock Powers and to hold
the Escrow Fund and Stock Powers in an escrow account (the "Escrow Account"),
subject to the terms and conditions of this Agreement.
(b) Voting of Escrow Shares. The record owner of the Escrow Shares shall be
entitled to exercise all voting rights with respect to such Escrow Shares.
A-42
<PAGE> 48
(c) Dividends, Etc. Parent and each of the Selling Members agree among
themselves, for the benefit of Parent and the Escrow Agent, that any securities
or other property distributable (whether by way of dividend, stock split or
otherwise) in a tax-free transaction in respect of or in exchange for any Escrow
Shares shall not be distributed to the record owners of such Escrow Shares, but
rather shall be distributed to and held by the Escrow Agent in the Escrow
Account. Ordinary cash dividends and any other taxable dividends, distributions
or exchange proceeds will be paid by Parent directly to the Selling Members and
not to the Escrow Agent. Unless and until the Escrow Agent shall actually
receive such additional securities or other property, it may assume without
inquiry that the Escrow Shares currently being held by it in the Escrow Account
are all that the Escrow Agent is required to hold. At the time any Escrow Shares
are required to be released from the Escrow Account to any Person pursuant to
this Agreement, any securities or other property previously received by the
Escrow Agent in respect of or in exchange for such Escrow Shares shall be
released from the Escrow to such Person.
(d) Transferability. The interests of the Selling Members in the Escrow
Account and in the Escrow Shares shall not be assignable or transferable, other
than by operation of law, or in connection with the liquidation of GolfData
Corporation (in which case, the Escrow Shares registered in the name of GolfData
Corporation shall remain Escrow Shares once distributed to GolfData
Corporation's shareholders). No transfer of any of such interests by operation
of law or in connection with the liquidation of GolfData Corporation shall be
recognized or given effect until Parent and the Escrow Agent shall have received
written notice of such transfer. Parent and Designated Company Agent shall
deliver to the Escrow Agent a revised Exhibit A to reflect any change as a
result of the distribution by GolfData Corporation of the Parent Common Stock it
received pursuant to the Purchase Agreement to GolfData Corporation's
shareholders.
(e) Fractional Shares. No fractional shares of Parent Common Stock shall be
retained in or released from the Escrow Account pursuant to this Agreement. In
connection with any release of Escrow Shares from the Escrow Account, Parent and
the Escrow Agent shall "round down" in order to avoid retaining any fractional
share in the Escrow Account and in order to avoid releasing any fractional share
from the Escrow Account. When shares are "rounded down", no cash-in-lieu
payments need to be made.
3. Administration of Escrow Account. Except as otherwise provided herein,
with respect to any claim pursuant to Section 9 of the Purchase Agreement (other
than Section 9.2 or Section 9.3), the Escrow Agent shall be entitled to rely on
the instructions of the Designated Company Agent on behalf of the Selling
Members and shall administer the Escrow Account as follows:
(a) If any Parent Indemnitee has or claims to have incurred or suffered
Damages for which it is or may be entitled to indemnification, compensation or
reimbursement under Section 9.4 of the Purchase Agreement, such Parent
Indemnitee may deliver a claim notice (a "Claim Notice") to the Designated
Company Agent and to the Escrow Agent, on or prior to, but not after, the one
year anniversary of the Closing Date under the Purchase Agreement (such one year
anniversary being referred to herein as the "Termination Date"); provided,
however, that if, at any time on or prior to the Termination Date, any Parent
Indemnitee (acting in good faith) delivers to the Designated Company Agent and
the Escrow Agent a Claim Notice, then the claim asserted in such Claim Notice
will survive the Termination Date until such time as such claim is fully and
finally resolved in accordance with the provisions of this Section 3. The Escrow
Agent shall not be deemed to have knowledge of termination of this Agreement
earlier than the Termination Date unless notice in writing of such earlier date
has been provided by Parent. Each Claim Notice shall state that such Parent
Indemnitee believes that there is or has been a breach of a representation,
warranty or covenant contained in the Purchase Agreement or that such Parent
Indemnitee is otherwise entitled to indemnification, compensation or
reimbursement under Section 9.4 of the Purchase Agreement and shall contain a
brief description of the circumstances supporting such Parent Indemnitee's
belief that there is or has been such a breach or that such Parent Indemnitee is
so entitled to indemnification, compensation or reimbursement and shall contain
a non-binding, preliminary estimate of the amount of Damages such Parent
Indemnitee claims to have so incurred or suffered (the "Claimed Amount").
(b) Within 45 business days after receipt by the Designated Company Agent
of a Claim Notice, the Designated Company Agent may deliver to the Parent
Indemnitee who delivered the Claim Notice and to the
A-43
<PAGE> 49
Escrow Agent a written response (the "Response Notice") in which the Designated
Company Agent: (i) agrees that a whole number of Escrow Shares having a
"Stipulated Value" (as defined below) equal to the full Claimed Amount may be
released from the Escrow Account to the Parent Indemnitee; (ii) agrees that
Escrow Shares having a Stipulated Value equal to part, but not all, of the
Claimed Amount (the "Agreed Amount") may be released from the Escrow Account to
the Parent Indemnitee or (iii) indicates that no part of the Claimed Amount may
be released from the Escrow Account to the Parent Indemnitee. Any part of the
Claimed Amount that is not to be released to the Parent Indemnitee shall be the
"Contested Amount." If a Response Notice is not received by the Escrow Agent
within such 45 business-day period, then the Designated Company Agent shall be
deemed to have agreed that Escrow Shares having a Stipulated Value equal to the
full Claimed Amount may be released to the Parent Indemnitee from the Escrow
Account, subject to the limitation set forth in Section 5(d).
(c) If the Designated Company Agent delivers a Response Notice agreeing
that Escrow Shares having a Stipulated Value equal to the full Claimed Amount
may be released from the Escrow Account to the Parent Indemnitee, or if the
Designated Company Agent does not deliver a Response Notice in accordance with
Section 3(b) within the 45 business-day period specified in Section 3(b), the
Escrow Agent shall within five (5) business days following the receipt of the
Response Notice (or, if the Escrow Agent has not received a Response Notice,
within three (3) business days following the expiration of the 45 business-day
period referred to in Section 3(b)), deliver or cause to be delivered to such
Parent Indemnitee such Escrow Shares, subject to the limitation set forth in
Section 5(d). Such payment shall be deemed to be made in full satisfaction of
the claim described in such Claim Notice and Escrow Agent shall not be liable
for the Claim Amount so released.
(d) If the Designated Company Agent delivers a Response Notice agreeing
that Escrow Shares having a Stipulated Value equal to part, but not all, of the
Claimed Amount may be released from the Escrow Account to the Parent Indemnitee,
the Escrow Agent shall within five (5) business days following the receipt of
the Response Notice deliver or cause to be delivered to such Parent Indemnitee
Escrow Shares having a Stipulated Value equal to the Agreed Amount, subject to
the limitation set forth in Section 5(d).
(e) If the Designated Company Agent delivers a Response Notice indicating
that there is a Contested Amount, the Designated Company Agent and the Parent
Indemnitee shall attempt in good faith to resolve the dispute related to the
Contested Amount. If the Parent Indemnitee and the Designated Company Agent
shall resolve such dispute, such resolution shall be binding on all of the
Selling Members and all of the Parent Indemnitees and a settlement agreement
shall be signed by the Parent Indemnitee and the Designated Company Agent and
sent to the Escrow Agent, who shall, within five (5) business days following
receipt thereof, if applicable, release Escrow Shares from the Escrow Account in
accordance with such agreement and having a Stipulated Value equal to the amount
set forth in such settlement agreement (the "Settlement Amount"), subject to the
limitation set forth in Section 5(d).
(f) If the Designated Company Agent and the Parent Indemnitee are unable to
resolve the dispute relating to any Contested Amount within 45 business days
after the delivery of the Claim Notice, then either party may submit the claim
described in the Claim Notice to be settled by binding arbitration in the County
of Los Angeles in the State of California in accordance with the Commercial
Arbitration Rules then in effect of the American Arbitration Association (the
"AAA Rules") by delivering written notice of such submission (the "Submission
Notice") to the other party. Arbitration will be conducted by three arbitrators;
one selected by Parent, one selected by the Designated Company Agent and the
third selected by the first two arbitrators. If Parent or the Designated Company
Agent fails to select an arbitrator within 10 business days after the date of
delivery of the Submission Notice, then the other shall be entitled to select
the second arbitrator. The parties agree to use all reasonable efforts to cause
the arbitration hearing to be conducted within 90 calendar days after the
appointment of the last of the three arbitrators and to use all reasonable
efforts to cause the arbitrators' decision to be furnished within 120 calendar
days after the appointment of the last of the three arbitrators. The parties
further agree that discovery shall be completed at least 20 business days prior
to the date of the arbitration hearing. The arbitrators' decision shall relate
solely to whether the Parent Indemnitee is entitled to recover the Contested
Amount (or a portion thereof), and the portion of such Contested Amount the
Parent Indemnitee is entitled to recover. The final decision of the arbitrators
shall be furnished to the
A-44
<PAGE> 50
Designated Company Agent, the Parent Indemnitee and the Escrow Agent in writing
and shall be final and binding upon the Selling Members, the Parent Indemnitees
and the Escrow Agent. The non-prevailing party in any arbitration shall pay the
reasonable expenses (including attorneys' fees) of the prevailing party, any
additional reasonable fees and expenses (including reasonable legal fees) of the
Escrow Agent, and the fees and expenses associated with the arbitration
(including the arbitrators' fees and expenses). For purposes of this Section
3(f), the prevailing party shall be deemed to be the Parent Indemnitee if it is
entitled to recover more than 50% of the Contested Amount; otherwise it shall be
the Selling Members. Any amounts for fees and expenses payable by the Selling
Members under this subsection (f) shall be paid out of Escrow Shares, after
payment of any amounts then payable to Parent Indemnitees.
(g) The Escrow Agent shall release, subject to the limitation set forth in
Section 5(d), Escrow Shares from the Escrow Account in connection with any
Contested Amount within three (3) business days after the delivery to it of: (i)
a copy of a settlement agreement executed by the Parent Indemnitee and the
Designated Company Agent setting forth instructions to the Escrow Agent as to
the number of Escrow Shares, if any, to be released from the Escrow Account,
with respect to such Contested Amount or (ii) a copy of the award of the
arbitrators referred to and as provided in Section 3(f) setting forth
instructions to the Escrow Agent as to the number of Escrow Shares, if any, to
be released from the Escrow Account, with respect to such Contested Amount.
(h) Any Escrow Shares released from the Escrow Account to a Parent
Indemnitee shall be deemed to reduce the Escrow Shares pro rata with respect to
each Selling Member in accordance with each Selling Member's percentage interest
in the Escrow Fund as set forth in Exhibit A.
4. Release of Escrow Shares.
(a) Within five (5) business days after the Termination Date, the Escrow
Agent shall distribute or cause the stock transfer agent for the Parent Common
Stock to distribute to each of the Selling Members at such Selling Member's
address set forth on Exhibit A such Selling Member's pro-rata portion of the
Escrow Shares then held in escrow (less any shares distributed to the Designated
Company Agent pursuant to Section 11 hereof) and based on the percentage
interests in the Escrow Fund set forth in Exhibit A; provided, however, that if
prior to the Termination Date, any Parent Indemnitee has given a Claim Notice
containing a claim which has not been resolved prior to the Termination Date in
accordance with Section 3, the Escrow Agent shall retain, subject to release
with respect to resolved claims as set forth in Section 3 and this Section 4(a)
and subject to the provisions of Section 5(d), in the Escrow Account after the
Termination Date Escrow Shares having a Stipulated Value equal to 100% of the
Claimed Amount or Contested Amount, as the case may be, with respect to all
claims which have not then been resolved. If Escrow Shares in the Escrow Account
at the end of each three (3) month interval after the Termination Date have an
aggregate Stipulated Value in excess of 100% of the then unresolved Claimed
Amounts and Contested Amounts, a number of Escrow Shares shall be released at
such time from the Escrow Account to the Selling Members pursuant to the first
sentence of this Section 4(a) so that the Stipulated Value of the Escrow Shares
remaining in the Escrow Account is not in excess of 100% of the then unresolved
Claimed Amounts and Contested Amounts. The Parent and Designated Company Agent
shall provide written notice to the Escrow Agent at the end of each three (3)
month interval following the Termination Date setting forth the Stipulated Value
of the Escrow Shares that should remain in the Escrow Account pursuant to the
preceding sentence.
(b) The Escrow Agent is not the stock transfer agent for the Parent Common
Stock. Accordingly, if a distribution of a number of shares of Parent Common
Stock less than all of the Escrow Shares is to be made, the Escrow Agent must
requisition the appropriate number of shares from such stock transfer agent,
delivering to it the appropriate stock certificates and related Stock Powers.
For the purposes of this Agreement, the Escrow Agent shall be deemed to have
delivered Parent Common Stock to the Person entitled to it when the Escrow Agent
has delivered such certificates and Stock Powers to such stock transfer agent
with instructions to deliver it to the appropriate Person. Distributions of
Parent Common Stock shall be made to Parent or the Selling Members, as
appropriate, at the addresses described in Section 12(b) or set forth on Exhibit
A hereto. Whenever a distribution is to be made to the Selling Members, pro rata
distributions shall be made to each of them based on the percentage interests in
the Escrow Fund and at their addresses set forth in Exhibit A.
A-45
<PAGE> 51
(c) Whenever a release of Escrow Shares occurs pursuant to the terms of
this Agreement, the Escrow Agent shall be authorized to request and shall
request that the transfer agent for the Parent Common Stock remove the Escrow
Legend from the Escrow Shares being released.
5. Valuation of Escrow Shares, Etc.
(a) Stipulated Value. For purposes of this Agreement, the "Stipulated
Value" of each Escrow Share on any date any Escrow Shares are released from the
Escrow Account shall be the higher of (a) the average of the closing sales price
of Parent Common Stock on the Nasdaq Stock Market as reported in the Wall Street
Journal for the twenty (20) trading days preceding the Closing Date under the
Purchase Agreement (the "Closing Average Value"), and (b) the average of the
closing sales price of Parent Common Stock on the NASDAQ Stock Market as
reported in the Wall Street Journal for the twenty (20) trading days preceding
the date that the Escrow Shares are released from the Escrow Account (the
"Release Average Value"), plus in each case the fair market value of any other
property held in the Escrow Account with respect to such Escrow Share pursuant
to Section 2(c). If the determination of Stipulated Value is being made with
respect to any provision of this Agreement that does not involve a release of
Escrow Shares, the "Stipulated Value" of each Escrow Share on the date of such
determination shall be the higher of (a) the Closing Average Value, and (b) the
average of the closing sales price of Parent Common Stock on the NASDAQ Stock
Market as reported in the Wall Street Journal for the twenty (20) trading days
preceding the date of such determination, plus in each case the fair market
value of any other property held in the Escrow Account with respect to such
Escrow Share pursuant to Section 2(c). The Escrow Agent shall be entitled to
rely on a written certification of Parent and Designated Company Agent of the
Stipulated Value when such determination is required under this Agreement.
(b) Stock Splits. All numbers contained in, and all calculations required
to be made pursuant to, this Agreement shall be adjusted as appropriate to
reflect any stock split, reverse stock split, stock dividend or similar
transaction effected by Parent after the date hereof; provided, however, that
the Escrow Agent shall have received notice of such stock split or other action
and shall have received the appropriate number of additional shares of Parent
Common Stock or other property pursuant to Section 2(c) hereof. In the event of
any such stock split or other similar occurrence, Parent shall deliver to the
Designated Company Agent and the Escrow Agent a revised version of Exhibit A
setting forth the new number of Escrow Shares held in the Escrow Fund. Unless
and until the Escrow Agent receives the certificates representing additional
shares of Parent Common Stock or other property pursuant to Section 2(c), the
Escrow Agent may assume without inquiry that no such stock or other property has
been or is required to be issued with respect to Escrow Shares.
(c) Exclusive Remedy. With the exception of claims based upon fraud, from
and after the Closing, recourse of Parent to the Escrow Shares (adjusted as
appropriate to reflect any stock split, reverse stock split, stock dividend or
similar transaction effected by Parent after the date hereof) pursuant to the
Purchase Agreement and this Agreement shall be the sole and exclusive remedy of
Parent and the other Parent Indemnitees for any claim for monetary damages under
the indemnification provisions contained in, or for any breach of, the Purchase
Agreement (it being understood that nothing in this paragraph or elsewhere in
this Agreement or in the Purchase Agreement shall affect Parent's rights to
specific performance or other similar equitable remedies with respect to
covenants referred to in the Purchase Agreement to be performed after the
Closing).
(d) Aggregate Limit. Notwithstanding any other provision of this Agreement,
the aggregate Stipulated Value of Escrow Shares that may be released from the
Escrow Account pursuant to this Escrow Agreement shall not exceed Five Million
Dollars ($5,000,000) (the "Maximum Liability Cap"). Notwithstanding any other
provision of this Agreement, if the Escrow Agent releases from the Escrow
Account in the aggregate to Parent Indemnitees Escrow Shares having an aggregate
Stipulated Value equal to the Maximum Liability Cap, the Escrow Agent shall
within five (5) business days release all then remaining Escrow Shares to the
Selling Members, pro rata with respect to each Selling Member in accordance with
each Selling Member's percentage interest in the Escrow fund as set forth on
Exhibit A, in which case this Escrow Agreement shall thereafter immediately
terminate.
A-46
<PAGE> 52
6. Fees and Expenses. Upon the execution of this Agreement by all parties
hereto and the initial deposit of the Escrow Fund in the Escrow Account, fees
and expenses, in accordance with Exhibit B attached hereto, will be payable to
the Escrow Agent. This annual Escrow Agent fee will cover the first twelve
months of the escrow. In accordance with Exhibit B attached hereto, the Escrow
Agent will also be entitled to reimbursement for reasonable and documented
out-of-pocket expenses, including those of its counsel, incurred by the Escrow
Agent in the performance of its duties hereunder and the execution and delivery
of this Agreement. All such fees and expenses shall be paid by Parent.
7. Limitation of Escrow Agent's Liability.
(a) The Escrow Agent undertakes to perform such duties as are specifically
set forth in this Agreement only each of which are solely ministerial in nature,
and shall have no duty under or obligation to determine compliance with, any
other agreement or document notwithstanding their being referred to herein or
attached hereto as an exhibit. The Escrow Agent shall not be liable except for
the performance of such duties as are specifically set forth in this Agreement,
and no implied covenants or obligations shall be read into this Agreement
against the Escrow Agent. The Escrow Agent shall not be deemed to be a fiduciary
and shall incur no liability with respect to any action taken by it or for any
inaction on its part in reliance upon any notice, direction, instruction,
consent, statement or other document believed by it to be genuine and duly
authorized, nor for any other action or inaction except for its own willful
misconduct or negligence. The Escrow Agent may rely on and use the Stock Powers
and shall not be liable in connection therewith. In all questions arising under
this Agreement, the Escrow Agent may rely on the advice of counsel, and for
anything done, omitted or suffered in good faith by the Escrow Agent based upon
such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent
shall not be required to take any action hereunder involving any expense unless
the payment of such expense is made or provided for in a manner reasonably
satisfactory to it. In no event shall the Escrow Agent be liable for incidental,
punitive or consequential damages whatsoever, even if the Escrow Agent has been
advised of the likelihood of such damages.
(b) Parent hereby agrees to indemnify the Escrow Agent, its officers,
directors, employees and agents for, and hold it harmless against, any loss,
liability or expense incurred without negligence or willful misconduct on the
part of Escrow Agent, arising out of or in connection with its carrying out of
its duties hereunder. This right of indemnification shall survive the
termination of this Agreement, and the resignation of the Escrow Agent. The
costs and expenses of enforcing this right of indemnification shall also be paid
by Parent.
(c) In the event that the Escrow Agent should at any time be (i) confronted
with inconsistent or conflicting claims or demands by the other parties hereto
or (ii) unsure of its duties hereunder, the Escrow Agent shall have the right to
interplead the parties in any California court or any court of competent
jurisdiction and request that such court determine the respective rights of the
parties with respect to this Agreement and, upon doing so, the Escrow Agent
shall be released from any obligations or liability to the other parties as a
consequence of any such claims or demands. The Escrow Agent may consult counsel
satisfactory to it, including in-house counsel, and will be protected in respect
of any action taken or omitted in reliance thereon.
(d) The Escrow Agent may execute any of its powers or responsibilities
hereunder and exercise any rights hereunder, either directly or by or through
its agents or attorneys. Nothing in this Agreement shall be deemed to impose
upon the Escrow Agent any duty to qualify to do business in any jurisdiction
other than California. The Escrow Agent shall not be responsible for and shall
not be under a duty to examine, inquire into or pass upon the validity, binding
effect, execution or sufficiency of this Agreement or of any amendment or
supplement hereto.
8. Termination. This Agreement shall terminate upon the release by the
Escrow Agent of the entire Escrow Fund in accordance with this Agreement.
9. Successor Escrow Agent. In the event the Escrow Agent becomes
unavailable or unwilling to continue as escrow agent under this Agreement, the
Escrow Agent may resign and be discharged from its duties and obligations
hereunder by giving its written resignation to the parties to this Agreement.
Such
A-47
<PAGE> 53
resignation shall take effect not less than 30 calendar days after it is given
to all parties hereto. Parent may appoint a successor Escrow Agent only with the
consent of a majority in interest of the Selling Members (which consent shall
not be unreasonably withheld or delayed). If the parties fail to agree on a
successor Escrow Agent within such time, the Escrow Agent shall have the right
to apply to a court of competent jurisdiction for the appointment of a successor
Escrow Agent. The successor Escrow Agent shall execute and deliver to the Escrow
Agent an instrument accepting such appointment, and the successor Escrow Agent
shall, without further acts, be vested with all the estates, property rights,
powers and duties of the predecessor Escrow Agent as if originally named as
Escrow Agent herein. The Escrow Agent shall act in accordance with written
instructions from Parent as to the transfer of the Escrow Fund to a successor
escrow agent.
10. Designated Company Agent. By virtue of their approval of the
Transaction and the Purchase Agreement and their execution of this Agreement,
the Selling Members shall have approved the indemnification and escrow terms set
forth in the Purchase Agreement and this Agreement and shall have agreed to
irrevocably appoint Danny Mills, as Designated Company Agent, to give and
receive notices and communications, to authorize delivery to Parent of Parent
Common Stock, cash or other property from the Escrow Fund, to object to such
deliveries, to agree to, negotiate, enter into settlements and compromises of,
and demand dispute resolution pursuant to Section 3 of this Agreement and comply
with orders of courts and awards of arbitrators with respect to such claims, and
to take all actions necessary or appropriate in the judgment of the Designated
Company Agent for the accomplishment of the foregoing. The Designated Company
Agent shall not be responsible for any act done or omitted thereunder as
Designated Company Agent while acting in good faith and in the exercise of
reasonable judgment. The Selling Members shall jointly and severally indemnify
the Designated Company Agent and hold the Designated Company Agent harmless
against any loss, liability or expense incurred without gross negligence, bad
faith or willful misconduct on the part of the Designated Company Agent and
arising out of or in connection with the acceptance or administration of the
Designated Company Agent's duties hereunder, including the reasonable fees and
expenses of any legal counsel or other professional retained by the Designated
Company Agent. By virtue of their approval of the Transaction and this
Agreement, the Selling Members hereby agree to pay (i) the reasonable fees of
the Designated Company Agent relating to his services performed in such capacity
as set forth on Exhibit C hereto and (ii) all costs and expenses, including
those of any legal counsel or other professional retained by the Designated
Company Agent, in connection with the acceptance and administration of the
Designated Company Agent's duties hereunder. Subject to the prior right of
Parent to make claims for Damages, the Designated Company Agent shall have the
right to recover from the Escrow Fund, prior to any distribution to the Selling
Members pursuant to Section 4(a), Section 4(b) or Section 5(d) hereof, a number
of Escrow Shares set forth in a certificate of the Designated Company Agent
delivered to the Escrow Agent at least two (2) business days prior to the date
on which a distribution is to be made to the Selling Members equal to the
quotient obtained by dividing (i) any reasonable fees, costs and expenses set
forth in such certificate, including those of any legal counsel or other
professional retained by the Designated Company Agent, in connection with the
acceptance and administration of the Designated Company Agent's duties
hereunder, by (ii) the Stipulated Value. The Escrow Agent shall not be required
to verify or confirm the amounts set forth in such certificate or determine that
reasonableness of such amounts and shall be entitled to rely on such certificate
in making payments to Designated Company Agent hereunder. The Escrow Agent
agrees to deliver to the Designated Company Agent such number of Escrow Shares
prior to making any distribution of Escrow Shares to the Selling Members.
Notwithstanding the foregoing, no failure by the Designated Company Agent to
collect Escrow Shares in respect of its reasonable fees, costs and expenses
shall excuse the Selling Members from paying such reasonable fees, costs and
expenses.
11. Miscellaneous.
(a) Attorneys' Fees. If any action or proceeding relating to this Agreement
or the enforcement of any provision of this Agreement is brought against any
party hereto (other than the Escrow Agent, whose rights to reimbursement for its
attorneys fees, costs and disbursement are set forth in Sections 6 and 7), the
prevailing party shall be entitled to recover reasonable attorneys' fees, costs
and disbursements (in addition to any other relief to which the prevailing party
may be entitled).
A-48
<PAGE> 54
(b) Notices. Any notice or other communication required or permitted to be
delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile telephone number set forth in Section 10.5 of the Purchase
Agreement or to the Escrow Agent at the address set forth below (or to such
other address or facsimile telephone number as such party shall have specified
in a written notice given to the other parties hereto):
State Street Bank and Trust Company of California, N.A.
Corporate Trust Division
633 West 5th Street, 12th Floor
Los Angeles, CA 90071
Attention: Corporate Trust Administration: Quokka Sports,
Inc./Golf.com, L.L.C.
Telephone: (213) 362-7334
Facsimile: (213) 362-7357
The Escrow Agent may assume that any Claim Notice, Response Notice or other
notice of any kind required to be delivered to the Escrow Agent and any other
Person has been received by such other Person if it has been received by the
Escrow Agent, but the Escrow Agent need not inquire into or verify such receipt.
(c) Headings. The headings contained in this Agreement are for convenience
of reference only, shall not be deemed to be a part of this Agreement and shall
not be referred to in connection with the construction or interpretation of this
Agreement.
(d) Counterparts. This Agreement may be executed in several counterparts,
each of which shall constitute an original and all of which, when taken
together, shall constitute one agreement.
(e) Governing Law. This Agreement shall be construed in accordance with,
and governed in all respects by, the internal laws of the State of California
(without giving effect to principles of conflicts of laws).
(f) Successors and Assigns. This Agreement shall be binding upon each of
the parties hereto and each of their respective permitted successors and
assigns, if any. No Selling Member may assign such Selling Member's rights under
this Agreement without the express prior written consent of Parent, provided,
however, that (i) upon the death of a Selling Member, such Selling Member's
rights under this Agreement shall be transferred to the person(s) who receive
such Selling Member's Parent Common Stock under the laws of descent and
distribution and (ii) a Selling Member may assign such Selling Member's rights
under this Agreement to any organization qualified under Section 501(c)(3) of
the Internal Revenue Code to which the Selling Member transfers shares in
connection with an estate planning transaction. Nothing in this Agreement is
intended to confer, or shall be deemed to confer, any rights or remedies upon
any person or entity other than the parties hereto and their permitted
successors and assigns. This Agreement shall inure to the benefit of the Selling
Members, Parent, Escrow Agent, the Designated Company Agent and the respective
successors and assigns, if any, of the foregoing. Notwithstanding anything to
the contrary in this Section 11(f), this Agreement shall be binding upon and
inure to the benefit of the GolfData Corporation shareholders to whom GolfData
Corporation will make a distribution of its shares of Parent Common Stock
(including its allocation of the Escrow Shares) immediately after the Closing
Date.
(g) Waiver. No failure on the part of any Person to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
Person in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. No Person shall be deemed to have waived any claim arising
out of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of such Person; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
A-49
<PAGE> 55
(h) Amendments. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed and
delivered on behalf of all of the parties hereto; provided, however, that any
amendment duly executed and delivered by the Designated Company Agent shall be
deemed to have been duly executed and delivered by all of the Selling Members.
(i) Severability. In the event that any provision of this Agreement, or the
application of any such provision to any Person or set of circumstances, shall
be determined to be invalid, unlawful, void or unenforceable to any extent, the
remainder of this Agreement, and the application of such provision to Persons or
circumstances other than those as to which it is determined to be invalid,
unlawful, void or unenforceable, shall not be impaired or otherwise affected and
shall continue to be valid and enforceable to the fullest extent permitted by
law.
(j) Parties in Interest. None of the provisions of this Agreement is
intended to provide any rights or remedies to any Person other than the parties
hereto and their respective successors and assigns, if any.
(k) Entire Agreement. This Agreement and the other agreements referred to
herein set forth the entire understanding of the parties hereto relating to the
subject matter hereof and thereof and supersede all prior agreements and
understandings among or between any of the parties relating to the subject
matter hereof and thereof.
(l) Waiver of Jury Trial. Each of the parties hereto hereby irrevocably
waives any and all right to trial by jury in any Legal Proceeding arising out of
or related to this Agreement or the transactions contemplated hereby.
(m) Tax Reporting Information and Certification of Tax Identification
Numbers.
(i) The parties hereto agree that, for tax reporting purposes, all
taxable dividends, interest on or other income, if any, attributable to the
Escrow Shares or any other amount held in escrow by the Escrow Agent
pursuant to this Agreement shall be allocable to the Selling Members in
accordance with their percentage interests in the Escrow Fund set forth in
Exhibit A.
(ii) Parent and each of the Selling Members agree to provide the
Escrow Agent with certified tax identification numbers for each of them by
furnishing appropriate forms W-9 (or Forms W-8, in the case of non-U.S.
persons) and any other forms and documents that the Escrow Agent may
reasonably request (collectively, "Tax Reporting Documentation") to the
Escrow Agent within 30 days after the date hereof. The parties hereto
understand that, if such Tax Reporting Documentation is not so certified to
the Escrow Agent, the Escrow Agent shall be required by the Internal
Revenue Code, as it may be amended from time to time, to withhold and remit
to the Internal Revenue Service a portion of any interest or other income
earned on the investment of monies or other property held by the Escrow
Agent pursuant to this Agreement.
(n) Construction. For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders. The parties hereto agree that
any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be applied in the construction or
interpretation of this Agreement. As used in this Agreement, the words "include"
and "including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
[Signature Page Follows on the Next Page]
A-50
<PAGE> 56
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
Quokka Sports, Inc.
Signature:
Printed Name:
Title:
DESIGNATED COMPANY AGENT:
Signature:
Danny Mills
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A., AS
ESCROW AGENT
Signature:
Printed Name:
Title:
SELLING MEMBER:
Name of Entity:
By:
Printed Name:
Title:
A-51
<PAGE> 57
EXHIBIT A
SELLING MEMBERS
<TABLE>
<CAPTION>
SHARES TO PRO RATA
BE HELD IN PERCENTAGE
ESCROW INTEREST IN
SELLING MEMBER ADDRESS ACCOUNT ESCROW FUND
-------------- ------- ---------- -----------
<S> <C> <C> <C>
Total Sports Inc. .................. 133 Fayetteville Street Mall, 6th Floor 137,517 35.35%
Raleigh, North Carolina 27601
Attn: Frank Daniels, III
Fax: (919) 755-8080
with a copy to:
J. Christopher Lynch
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
Fax: (919) 778-4865
GolfData Corporation................ 4639 N. 20th Place 162,647 41.81%
Arlington, Virginia 22207
Attn: Alex Miceli
with a copy to:
Satex Investment Partners
10010 San Pedro, Suite 360
San Antonio, Texas 78216
Attn: Danny Mills
Media One Interactive Services, 9000 E. Nichols Avenue, Suite 100 65,393 16.81%
Inc. ............................. Englewood, Colorado 80112
Attn: Director of Finance
Fax: (303) 705-5163
with a copy to:
Media One Group, Inc.
188 Inverness Drive
Englewood, Colorado 80112
Attn: General Counsel
The New York Times Company
Magazine Group, Inc. ............. 5520 Park Avenue 16,767 4.31%
Trumbull, Connecticut
Attn: Robert Carney
Fax: (203) 373-7170
with a copy to:
The New York Times Company
229 West 43rd Street
New York, New York 10036
Attn: Secretary
Fax: (212) 556-4634
Otto Candies Inc. .................. [Forthcoming] 6,691 1.72%
Total..................... 389,015 100.00%
</TABLE>
A-52
<PAGE> 58
EXHIBIT B
ESCROW FEES AND EXPENSES
<TABLE>
<S> <C>
ACCEPTANCE FEE.............................................. $750.00
This one-time charge, payable at closing, includes
acceptance and assumption of responsibility and duties as
Escrow Agent; review and comment on the form of agreement;
and establishment of account(s) in accordance with
governing document
LEGAL COUNSEL............................................... At Cost
ESCROW AGENT FEE............................................ $3,500.00
Payable at funding and annually thereafter, if applicable
Compensates State Street for administrative services in
accordance with the Escrow Agreement
Pro-Rata Calculations: Should the Escrow Agreement require
pro-rata distribution of investment income to the
beneficiaries, the annual fee noted above includes
calculations and tax report for up to ten (10)
beneficiaries. State Street will assess an additional $250
for each beneficiary pro-rata calculations beyond the
first ten
CLAIMS (if applicable)
Uncontested............................................... $250.00
Contested................................................. Billed at Cost
PREPARATION OF 1099'S (if applicable, each 1099)............ $15.00
WIRE TRANSFER FEE (This fee will be deducted from wire
amount, if applicable)
International............................................. $40.00
Domestic.................................................. $15.00
INVESTMENT FEE.............................................. $65.00
Per security purchased (i.e. Treasuries, Agencies, etc.)
INVESTMENT IN STATE STREET INVESTMENT VEHICLES.............. 40 Basis Points (.0040)
(Calculated on the Average Daily Net Assets)
INVESTMENT VEHICLES
SSgA Prime Money Market Fun...............................
SSgA US Treasury Money Market Fund........................
SSgA Tax Free Money Market Fund...........................
STATE STREET INSURED MONEY MARKET (IMMA).................... No Transaction Fee
OUT-OF-POCKET EXPENSE....................................... At Cost
</TABLE>
A-53
<PAGE> 59
EXHIBIT C
DESIGNATED COMPANY AGENT FEES
A-54
<PAGE> 60
EXHIBIT D
MEMBER CERTIFICATION
(ENTITY)
THIS MEMBER CERTIFICATION ("Certification") is being executed and delivered
by the undersigned member (the "Selling Member") of GOLF.COM, L.L.C., a Delaware
limited liability company (the "Company"), in favor of and for the benefit of
the Company, QUOKKA SPORTS, INC., a Delaware corporation ("Parent"), and DANNY
MILLS (the "Designated Company Agent").
RECITALS
Pursuant to a Purchase Agreement and Plan of Reorganization (the
"Agreement"), dated as of June , 2000, among Parent, the Selling Members
identified therein (including GolfData) and the Company, it is contemplated that
Parent will purchase or otherwise acquire from each Selling Member such Selling
Member's ownership interest in the Company (the purchase or other acquisition of
the ownership interests being referred to in this Certification as the
"Transaction"). Upon the consummation of the Transaction, (i) the Selling
Members will receive shares of common stock of Parent ("Parent Common Stock") in
exchange for their ownership interests in the Company with such exchange with
respect to GolfData constituting a "reorganization" within the meaning of
Section 368(a) of the Internal Revenue Code of 1986, as amended, and (ii)
GolfData will immediately distribute to its shareholders in complete liquidation
the shares of Parent Common Stock that GolfData received in the Transaction (the
"Distribution"). This distribution is required to preserve the nontaxable status
of the Transaction to GolfData and its shareholders. The information requested
below is required to comply with various securities laws applicable to such
issuance by Parent [and distribution by GolfData]. [BRACKETED LANGUAGE IN
GOLFDATA CERTIFICATION ONLY.]
CERTIFICATION
1. Residence Information. Please provide the full legal name of the
investing entity, address of the city and state or foreign country where your
investment decision regarding the Transaction is being made, phone number, and
Employee Identification Number.
2. Accredited Investor Certification. The undersigned makes one of the
following representations regarding its net worth and certain related matters,
and has checked the applicable representation:
[ ] (i) The undersigned is a trust with total assets in excess of
$5,000,000 whose purchase is directed by a person with such
knowledge and experience in financial and business matters that
such person is capable of evaluating the merits and risks of the
prospective investment.
[ ] (ii) The undersigned is a bank, insurance company, investment company
registered under the United States Investment Company Act of
1940, as amended (the "Companies Act"), a broker or dealer
registered pursuant to Section 15 of the United States
Securities Exchange Act of 1934, as amended, a business
development company, a Small Business Investment Company
licensed by the United States Small Business Administration, a
plan with total assets in excess of $5,000,000 established and
maintained by a state for the benefit of its employees, or a
private business development company as defined in Section
202(a)(22) of the United States Investment Advisers Act of 1940,
as amended.
A-55
<PAGE> 61
[ ] (iii) The undersigned is an employee benefit plan and either all
investment decisions are made by a bank, savings and loan
association, insurance company, or registered investment
advisor, or the Investor has total assets in excess of
$5,000,000 or, if such plan is a self-directed plan, investment
decisions are made solely by persons who are accredited
investors.
[ ] (iv) The undersigned is a corporation, partnership, business trust,
not formed for the purpose of acquiring shares in the Company or
Parent, or an organization described in section 501(c)(3) of the
Internal Revenue Code of 1986, as amended (the "Code"), in each
case with total assets in excess of $5,000,000.
[ ] (v) The undersigned is an entity in which all of the equity owners
qualify under any of the above subparagraphs, or, if an
individual, each such individual has a net worth(1), either
individually or upon a joint basis with such individual's spouse,
of at least $1,000,000 (within the meaning of such terms as used
in the definition of "accredited investor" contained in Rule 501
under the Securities Act), or has had an individual income(2) in
excess of $200,000 for each of the two most recent years, or a
joint income with such individual's spouse in excess of $300,000
in each of those years, and has a reasonable expectation of
reaching the same income level in the current year.
[ ] (vi) The undersigned cannot make any of the representations set forth
in paragraphs "(i)" through "(v)" above.
IF YOU CHECKED PARAGRAPH (VI) ABOVE, PLEASE COMPLETE THE FOLLOWING ITEMS 3
THROUGH 10. IF YOU CHECKED ANY OF PARAGRAPHS (I) THROUGH (V) ABOVE, PLEASE
PROCEED TO ITEM 10.
3. Will the value of the Parent Common Stock exceed 10 percent of the
investing entities' net worth at the time of the Transaction?
[ ] Yes [ ] No
4. Please describe the educational background, indicating degrees obtained,
of the person making the investment decisions with respect to the Transaction
(the "Decision-Maker"). Please describe any college-level courses that the
Decision-Maker has taken relating to economics, finance, accounting or
statistics (attach a separate sheet of paper if you require more space).
---------------
1For purposes of this Certification, "net worth" means the excess of total
assets at fair market value over total liabilities, except that the principal
residence owned by a natural person shall be valued either (a) at cost,
including the cost of improvements, net of current encumbrances upon the
property, or (b) at the appraised value of the residence as determined upon a
written appraisal used by an institutional lender making a loan to the
individual secured by the property, including the cost of subsequent
improvements, net of current encumbrances upon the property. As used in the
preceding sentence, "institutional lender" means a bank, savings and loan
company, industrial loan company, credit union or personal property broker or a
company whose principal business is as a lender of loans secured by real
property and which has such loans receivable in the amount of $2,000,000 or
more.
2For purposes of this Certification, "income" means adjusted gross income, as
reported for federal income tax purposes, increased by the following amounts:
(a) the amount of any tax exempt interest income received, (b) the amount of
losses claimed as a limited partner in a limited partnership, (c) any deduction
claimed for depletion, (d) amounts contributed to an IRA or Keogh retirement
plan, (e) alimony paid, and (f) any amounts by which income from long-term
capital gains has been reduced in arriving at adjusted gross income pursuant to
the provisions of Section 1202 of the Internal Revenue Code.
A-56
<PAGE> 62
5. Please describe occupational history of the Decision-Maker briefly. What
is sought is a sufficient description to enable the Company to determine the
extent of the Decision-Maker's experience in financial and business matters
(attach a separate sheet of paper if you require more space).
6. Please indicate the Decision-Maker's or the entity's prior experience in
investing in speculative, high technology companies such as Parent (attach a
separate sheet of paper if you require more space).
7. Please indicate any other relevant investment experience of the
Decision-Maker or the entity (attach a separate sheet of paper if you require
more space).
8. Please describe any pre-existing personal or business relationships
between the Decision-Maker or the entity and Parent, or any of its officers or
directors.
9. If the Decision-Maker has a background or experience in the business
conducted by Parent, please describe.
10. Additional Representations and Acknowledgements.
The undersigned makes each of the following additional representations and
acknowledgements:
(i) No Distribution. The Parent Common Stock issued to the Selling
Member will be acquired for investment for Selling Member's own account or
the account of its affiliated entities and not with a view to the sale or
distribution (other than in connection with the planned liquidation of
GolfData) of any part thereof, and Selling Member has no present intention
of selling, granting any participation in, or otherwise distributing (other
than in connection with the planned liquidation of GolfData) the same
(except to an affiliated entity or another Selling Member). [PARENTHETICALS
REGARDING GOLFDATA ARE FOR GOLFDATA CERTIFICATION ONLY.]
(ii) Securities Laws Matters. The undersigned is aware (a) that the
Parent Common Stock to be issued to the Selling Member in the Transaction
will not be registered and will not be issued pursuant to a registration
statement under the Securities Act, but will instead be issued in reliance
on the exemption
A-57
<PAGE> 63
from registration set forth in Section 4(2) of the Securities Act and/or in
Rule 506 under the Securities Act, and (b) that neither the Transaction nor
the issuance of such Parent Common Stock has been approved or reviewed by
the Securities and Exchange Commission or by any other governmental agency.
(iii) Resale Restrictions.
(a) Selling Member is aware that, because the Parent Common Stock
to be issued in the Transaction will not be registered under the
Securities Act, such Parent Common Stock cannot be resold unless such
Parent Common Stock is registered under the Securities Act or unless an
exemption from registration is available. Selling Member is also aware
that the provisions of Rule 144 under the Securities Act will permit
resale of the Parent Common Stock to be issued to the Selling Member in
the Transaction only under limited circumstances, and such Parent Common
Stock must be held by Selling Member for at least one year before it can
be sold pursuant to Rule 144.
(b) Selling Member understands that stop transfer instructions will
be given to Parent's transfer agent with respect to the Parent Common
Stock to be issued to the Selling Member in the Transaction, and that
there will be placed on the certificate or certificates representing
such Parent Common Stock a legend identical or similar in effect to the
following legend (together with any other legend or legends required by
applicable state securities laws or otherwise):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED
UNLESS REGISTERED UNDER THE ACT OR UNLESS AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE."
(iv) Selling Member Can Protect Its Interest. The undersigned
represents that by reason of its business or financial experience, the
undersigned has the capacity to protect its own interests in connection
with its acquisition of Parent Common Stock. The undersigned acknowledges
that it must, and represents that it can, bear the economic risk of the
investment Parent Common Stock indefinitely, until the shares of Parent
Common Stock are registered under the Securities Act, or an exemption from
registration is available.
(v) Company Information. The undersigned has received and read the
Agreement (along with the Escrow Agreement (as defined in the Agreement)).
The undersigned has also had the opportunity to ask questions of and
receive answers from Parent and the Company and their respective management
regarding the terms and conditions of the Transaction and the investment in
Parent Stock.
11. Escrow Arrangements. The undersigned has carefully reviewed the
Agreement and Escrow Agreement, and understands and agrees that pursuant to the
Agreement, Ten Percent (10%) of the Parent Common Stock to be issued to the
holders of the Company's outstanding ownership interests (the "Escrow Shares")
which constitutes the Transaction consideration will be deposited with the
Escrow Agent (as defined in the Escrow Agreement), and that the shares deposited
with the Escrow Agent shall be available to satisfy indemnification claims as
set forth in the Agreement. Pursuant to the Agreement, Parent may seek
indemnification for certain matters from the Escrow Shares, in which event the
portion of the Escrow Shares otherwise payable to the undersigned would be
reduced without any act of the undersigned, subject to the procedures and
limitations set forth in the Agreement and Escrow Agreement.
A-58
<PAGE> 64
The undersigned represents that the information contained herein is
complete and accurate and may be relied upon by the Company and Parent, and that
the undersigned will notify Parent of any material change in any of such
information prior to the undersigned's investment in Parent.
IN WITNESS WHEREOF, the undersigned has executed this Member Certification
this day of , 2000.
--------------------------------------
Name of Entity
--------------------------------------
Signature of Authorized Person
--------------------------------------
Printed Name and Title of Authorized
Person
This Member Certification must be signed by the registered holder of
ownership interests in the Company, exactly as the name(s) appear in the
operating agreement and/or equity records of the Company and as set forth above.
A-59
<PAGE> 65
EXHIBIT E
STATEMENT OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax with respect to certain transfers
of property if the transferor is a foreign person. To inform Quokka Sports, Inc.
("Acquiror") that withholding of tax is not required upon the disposition of the
ownership interest of Golf.com, Inc. ("Target") by the undersigned, the
undersigned hereby certifies as follows:
1. The undersigned is not a foreign person (as that term is defined in the
Internal Revenue Code and Income Tax Regulations);
2. The undersigned's U.S. taxpayer identification number is
; and
3. The undersigned's address is .
The undersigned understands that this certification may be disclosed to the
Internal Revenue Service by Acquiror and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document.
--------------------------------------
Date:
A-60
<PAGE> 66
EXHIBIT F
GENERAL RELEASE
THIS GENERAL RELEASE ("General Release") is being executed and delivered as
of , 2000, on behalf of the parties identified on Exhibit A hereto
(all of whom are referred to collectively as the "Releasors," and each of whom
is referred to individually as a "Releasor") to and in favor of, and for the
benefit of, GOLF.COM, L.L.C., a Delaware limited liability company ("Company"),
QUOKKA SPORTS, INC., a Delaware corporation ("Parent"), and the other Releasees
(as defined in Section 2).
RECITALS
A. Pursuant to a Purchase Agreement and Plan of Reorganization (the
"Agreement"), dated as of June , 2000, among Parent, the Selling Members
identified therein (including GolfData) and the Company, it is contemplated that
Parent will purchase or otherwise acquire contemporaneously with the execution
and delivery of this General Release from each Selling Member such Selling
Member's ownership interest in the Company (the purchase or other acquisition of
the ownership interests being referred to in this General Release as the
"Transaction"). Upon the consummation of the Transaction, (i) the Selling
Members will receive shares of common stock of Parent ("Parent Common Stock") in
exchange for their ownership interests in the Company with such exchange with
respect to GolfData constituting a "reorganization" within the meaning of
Section 368(a) of the Internal Revenue Code of 1986, as amended, and (ii)
GolfData will immediately distribute to its shareholders in complete liquidation
the shares of Parent Common Stock that GolfData received in the Transaction (the
"Distribution"). This distribution is required to preserve the nontaxable status
of the Transaction to GolfData and its shareholders.
B. Parent and the Company have required, as a condition to consummating the
Transaction and the other transactions contemplated by the Agreement, that the
Releasors execute and deliver this General Release.
AGREEMENT
In order to induce Parent to consummate the Transaction and the other
transactions contemplated by the Agreement, and for other valuable consideration
(the receipt and sufficiency of which are hereby acknowledged by the Releasors),
the Releasors hereby covenant and agree as follows:
1. Release. Each Releasor, for itself and for each of such Releasor's
Associated Parties (as defined in Section 2), hereby generally, irrevocably,
unconditionally and completely releases and forever discharges each of the
Releasees (as defined in Section 2) from, and hereby irrevocably,
unconditionally and completely waives and relinquishes, each of the Released
Claims (as defined in Section 2).
2. Definitions.
(a) The term "Associated Parties," when used herein with respect to a
Releasor, shall mean and include: (i) such Releasor's predecessors, successors,
executors, administrators, heirs and estate and (ii) each entity of which such
Releasor owns, directly or indirectly, at least 50% of the outstanding voting
interests.
(b) The term "Releasees" shall mean and include: (i) Parent; (ii) Company;
(iii) each of the direct and indirect subsidiaries of the Company and Parent;
(iv) each other controlled affiliate of the Company and Parent; and (v) the
successors and past, present and future assigns, directors, managers, officers,
employees, consultants, agents, attorneys and representatives of the respective
entities identified or otherwise referred to in clauses "(i)" through "(iv)" of
this sentence (but excluding the officers and members of the Board of Managers
of the Company).
(c) The term "Claims" shall mean and include all past, present and future
disputes, claims, controversies, demands, rights, obligations, liabilities,
actions and causes of action of every kind and nature, including: (i) any
unknown, unsuspected or undisclosed claim; (ii) any claim or right that may be
asserted or exercised by a Releasor in such Releasor's capacity as a member,
manager, officer, employee or consultant of the
A-61
<PAGE> 67
Company or in any other capacity; and (iii) any claim, right or cause of action
based upon any breach of any express, implied, oral or written contract or
agreement.
(d) The term "Released Claims" shall mean and include each and every Claim
that (i) any Releasor or any Associated Party of any Releasor may have had in
the past, may now have or may have in the future against any of the Releasees,
and (ii) has arisen or arises directly or indirectly out of, or relates directly
or indirectly to, any circumstance, agreement, activity, action, omission, event
or matter occurring or existing on or prior to the date of this General Release
(excluding only such Releasor's and its Associated Parties' rights, if any,
under and with respect to the Agreement and the Escrow Agreement (as defined in
the Agreement), and the documents and transactions contemplated therein).
3. Civil Code sec. 1542. Each Releasor (a) represents, warrants and
acknowledges, severally for itself, and not jointly with any other Releasor,
that such Releasor has been fully advised by his attorney of the contents of
Section 1542 of the Civil Code of the State of California, and (b) hereby
expressly waives the benefits thereof and any rights such Releasor may have
thereunder. Section 1542 of the Civil Code of the State of California provides
as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his settlement
with the debtor."
Each Releasor also hereby waives the benefits of, and any rights such Releasor
may have under, any statute or common law principle of similar effect in any
jurisdiction.
4. Representations and Warranties. Each Releasor represents and warrants,
severally for itself, and not jointly with any other Releasor, that:
(a) such Releasor has not assigned, transferred, conveyed or otherwise
disposed of any Claim against any of the Releasees, or any direct or indirect
interest in any such Claim, in whole or in part;
(b) to the best of such Releasor's knowledge, no other person or entity has
any interest in any of the Released Claims being released by such Releasor or
its Associated Parties;
(c) no Associated Party of such Releasor has or had any Claim against any
of the Releasees;
(d) no Associated Party of such Releasor will in the future have any Claim
against any Releasee that arises directly or indirectly from or relates directly
or indirectly to any circumstance, agreement, activity, action, omission, event
or matter occurring or existing on or before the date of this General Release
(except for matters related to Releasor's and its Associated Parties' rights, if
any, under or with respect to the Agreement or the Escrow Agreement (as defined
in the Agreement) and the documents and transactions contemplated therein);
(e) this General Release has been duly and validly executed and delivered
by such Releasor;
(f) this General Release is a valid and binding obligation of such Releasor
and such Releasor's Associated Parties, and is enforceable against such Releasor
and each of such Releasor's Associated Parties in accordance with its terms;
(g) there is no action, suit, proceeding, dispute, litigation, claim,
complaint or investigation by or before any court, tribunal, governmental body,
governmental agency or arbitrator pending or, to the best of the knowledge of
such Releasor, threatened against such Releasor or any of such Releasor's
Associated Parties that challenges or would challenge the execution and delivery
of this General Release or the taking of any of the actions required to be taken
by such Releasor under this General Release;
(h) neither the execution and delivery of this General Release nor the
performance hereof will (i) result in any violation or breach of any agreement
or other instrument to which such Releasor or any of such Releasor's Associated
Parties is a party or by which such Releasor or any of such Releasor's
Associated Parties is bound, or (ii) result in a violation of any law, rule,
regulation, treaty, ruling, directive, order, arbitration award, judgment or
decree to which such Releasor or any of such Releasor's Associated Parties is
subject; and
A-62
<PAGE> 68
(i) no authorization, instruction, consent or approval of any person or
entity is required to be obtained by such Releasor or any of such Releasor's
Associated Parties in connection with the execution and delivery of this General
Release or the performance hereof.
5. Indemnification. Without in any way limiting any of the rights or
remedies otherwise available to any Releasee, each Releasor, severally for
itself, and not jointly with any other Releasor, shall indemnify and hold
harmless each Releasee against and from any loss, damage, injury, harm,
detriment, liability, exposure, claim, demand, settlement, judgment, award,
fine, penalty, tax, fee, charge or expense (including attorneys' fees but
specifically excluding in all cases any loss of profits or consequential
damages) that is directly or indirectly suffered or incurred at any time by such
Releasee, or to which such Releasee otherwise becomes subject at any time, and
that arises directly or indirectly out of or by virtue of, or relates directly
or indirectly to, (a) any failure on the part of such Releasor to observe,
perform or abide by, or any other breach of, any restriction, covenant,
obligation, representation, warranty or other provision contained herein, or (b)
the assertion or purported assertion of any of the Released Claims by such
Releasor or any of such Releasor's Associated Parties.
6. Miscellaneous.
(a) This General Release sets forth the entire understanding of the parties
relating to the subject matter hereof and supersedes all prior agreements and
understandings among or between any of the Releasors and Releasees relating to
the subject matter hereof.
(b) If any provision of this General Release or any part of any such
provision is held under any circumstances to be invalid or unenforceable in any
jurisdiction, then (i) such provision or part thereof shall, with respect to
such circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (ii) the invalidity or unenforceability of such provision or part
thereof under such circumstances and in such jurisdiction shall not affect the
validity or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (iii) such invalidity or
enforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this General Release. If any provision
of this General Release or any part of such provision is held to be
unenforceable against any Releasor, then the unenforceability of such provision
or part thereof against such Releasor shall not affect the enforceability
thereof against any other Releasor. Each provision of this General Release is
separable from every other provision of this General Release, and each part of
each provision of this General Release is separable from every other part of
such provision.
(c) This General Release shall be construed in accordance with, and
governed in all respects by, the laws of the State of Delaware as such laws
apply to an agreement made and performed in such state between Delaware
residents (without giving effect to principles of conflicts of laws).
(d) This General Release may be executed in several counterparts, each of
which shall constitute an original and all of which, when taken together, shall
constitute one agreement.
(e) Each Releasor shall execute and/or cause to be delivered to each
Releasee such instruments and other documents, and shall take such other
actions, as such Releasee may reasonably request for the purpose of carrying out
or evidencing any of the actions contemplated by this General Release.
(f) If any legal action or other legal proceeding relating to this General
Release or the enforcement of any provision hereof is brought by any Releasor or
Releasee, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements to the extent actually incurred (in
addition to any other relief to which the prevailing party may be entitled).
(g) This General Release shall be effective with respect to, and shall be
binding upon and enforceable against, each Releasor who executes this General
Release, regardless of whether any of the other Releasors executes this General
Release.
A-63
<PAGE> 69
(h) Whenever required by the context, the singular number shall include the
plural, and vice versa; the masculine gender shall include the feminine and
neuter genders; and the neuter gender shall include the masculine and feminine
genders.
(i) Any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not be applied in the construction or
interpretation of this General Release.
(j) As used in this General Release, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, and shall
be deemed to be followed by the words "without limitation."
A-64
<PAGE> 70
IN WITNESS WHEREOF, the Releasors have caused this General Release to be
executed as of the date first above written.
RELEASOR(S):
By:
(Signature)
Name of Releasor:
(Please Print)
Name of Signatory:
(if Releasor is an Entity)
Title of Signatory:
(if Releasor is an Entity)
A-65
<PAGE> 71
EXHIBIT A
RELEASORS
Media One Interactive Services, Inc.
GolfData Corporation
Total Sports Inc.
The New York Times Company Magazine Group, Inc.
Otto Candies, Inc.
A-66
<PAGE> 72
EXHIBIT G
QUOKKA SPORTS, INC.
AMENDED AND RESTATED INVESTORS'
RIGHTS AGREEMENT
AS OF , 2000
A-67
<PAGE> 73
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
SECTION 1. GENERAL.................................................. A-69
1.1 Definitions................................................. A-69
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER................... A-71
2.1 Restrictions on Transfer.................................... A-71
2.2 Demand Registration......................................... A-72
2.3 Piggyback Registrations..................................... A-73
2.4 Form S-3 Registration....................................... A-74
2.5 Form S-3 Registration for ZoneNetwork Registrable
Securities.................................................. A-75
2.6 Form S-3 Registration for Golf.com Registrable Securities... A-77
2.7 Expenses of Registration.................................... A-78
2.8 Obligations of the Company.................................. A-78
2.9 Termination of Registration Rights.......................... A-79
2.10 Delay of Registration; Furnishing Information............... A-79
2.11 Indemnification............................................. A-79
2.12 Assignment of Registration Rights........................... A-81
2.13 Amendment of Registration Rights............................ A-81
2.14 Limitation on Subsequent Registration Rights................ A-81
2.15 "Market Stand-Off" Agreement................................ A-81
2.16 Rule 144 Reporting.......................................... A-82
SECTION 3. AFFIRMATIVE COVENANTS OF THE INVESTORS................... A-82
3.1 Confidential Information, Etc............................... A-82
SECTION 4. MISCELLANEOUS............................................ A-82
4.1 Governing Law............................................... A-82
4.2 Survival.................................................... A-82
4.3 Successors and Assigns...................................... A-82
4.4 Entire Agreement............................................ A-83
4.5 Severability................................................ A-83
4.6 Amendment and Waiver........................................ A-83
4.7 Delays or Omissions......................................... A-83
4.8 Notices..................................................... A-83
4.9 Attorneys' Fees............................................. A-83
4.10 Titles and Subtitles........................................ A-84
4.11 Counterparts................................................ A-84
4.12 Protection of Confidential Information...................... A-84
4.13 Disclosure of Terms: Press Releases......................... A-84
</TABLE>
A-68
<PAGE> 74
QUOKKA SPORTS, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the "Rights
Agreement") is entered into as of the day of , 2000, by and among
Quokka Sports, Inc., a Delaware corporation (the "Company") and the holders of
the Company's Common Stock and Warrants set forth on Exhibit A hereto (the
"Investors"). This Rights Agreement amends, restates and supersedes in its
entirety that certain Amended and Restated Investors' Rights Agreement dated
March 31, 2000 (the "Original Investors' Rights Agreement") which was entered
into in connection with the Company's issuance of shares of its Common Stock to
the stockholders of ZoneNetwork.com, Inc. pursuant to that certain Agreement and
Plan of Merger dated March 1, 2000 (the "Agreement and Plan of Merger").
RECITALS
WHEREAS, the Company and certain of its current stockholders and warrant
holders entered into the Original Investors' Rights Agreement; and
WHEREAS, the Company will issue shares of its Common Stock to certain
members of Golf.com, L.L.C. pursuant to that certain Purchase Agreement and Plan
of Reorganization dated June 8, 2000 (the "Agreement"); and
WHEREAS, pursuant to the Agreement, the Company agreed to solicit the
consent of the Investors (as such term was defined in the Original Investors'
Rights Agreement) to amend and restate the Original Investors' Rights Agreement
in order to include the shares of Common Stock issued pursuant to the Agreement
as set forth herein; and
WHEREAS, the parties hereto desire to amend the Original Investors' Rights
Agreement as described above;
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Rights Agreement and in
the Agreement, the parties mutually agree as follows:
SECTION 1. GENERAL
1.1 Definitions. As used in this Rights Agreement the following terms
shall have the following respective meanings:
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Form S-3" means such form under the Securities Act as in effect on the
date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"Golf.com Registrable Securities" means any of the shares of the Company's
Common Stock issued pursuant to the Agreement.
"Holder" means any person owning of record any shares of the Shares,
Warrants or Registrable Securities that have not been sold to the public or any
assignee of record of such Registrable Securities in accordance with Section
2.12 hereof.
"Initial Offering" means the Company's first firm commitment underwritten
public offering of its Common Stock registered under the Securities Act, which
occurred on July 27, 1999.
"Non-Voting Common Stock" means such shares of the Company's Non-Voting
Common Stock sold pursuant to the Common Stock Purchase Agreement dated April
12, 1997 or the Common Stock Purchase Agreement dated January 31, 1997.
"Old Registrable Securities" means (i) any of the Shares, if such Shares
are shares of the Company's Voting Common Stock; (ii) any shares of the
Company's Voting Common Stock issued pursuant to the
A-69
<PAGE> 75
exercise of the Warrants; and (iii) any shares of the Company's Voting Common
Stock issued as (or issuable upon the conversion or exercise of any warrants,
right or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, such above-described
securities or the Warrants.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or documents.
"Registrable Securities" shall mean the Golf.com Registrable Securities,
ZoneNetwork Registrable Securities and the Old Registrable Securities.
Notwithstanding the foregoing, Registrable Securities shall not include any
securities (i) sold by a person to the public either pursuant to a registration
statement or Rule 144, (ii) sold in a private transaction in which the
transferor's rights under Section 2 of this Rights Agreement are not assigned or
(iii) held by a Holder whose registration rights have expired under Section 2.9
hereto.
"Registrable Securities then outstanding" shall be the number of shares
that are Registrable Securities and either (1) are then issued and outstanding
or (2) are issuable pursuant to then exercisable or convertible securities.
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with Sections 2.2, 2.3 and 2.4 hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, reasonable fees and disbursements not to exceed Fifteen
Thousand Dollars ($15,000) of a single special counsel for the Holders (which
counsel shall be selected by the holders of a majority of the Registrable
Securities and subject to the approval of the Company, which approval shall not
be unreasonably withheld), blue sky fees and expenses and the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company which shall be paid in any
event by the Company).
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale.
"Series A Preferred" means the Company's Series A Preferred Stock that was
converted into Common Stock upon the initial public offering of the Company's
equity securities.
"Series B Preferred" means the Company's Series B Preferred Stock that was
converted into Common Stock upon the initial public offering of the Company's
equity securities.
"Series C Preferred" means the Company's Series C Preferred Stock that was
converted into Common Stock upon the initial public offering of the Company's
equity securities.
"Series D Preferred" means the Company's Series D Preferred Stock that was
converted into Common Stock upon the initial public offering of the Company's
equity securities.
"Shares" shall mean (i) the Company's Common Stock issued upon conversion
of the Series D Preferred, (ii) the Company's Common Stock issued upon
conversion of the Series C Preferred, (iii) the Company's Common Stock issued
upon conversion of the Series B Preferred, (iv) the Company's Common Stock
issued upon conversion of the Series A Preferred, (v) the Company's Voting
Common Stock issued pursuant to that certain Common Stock Purchase Agreement
dated August 19, 1997 by and among the Company and the Purchasers set forth on
Exhibit A thereto, (vi) the Company's Voting Common Stock and Voting Common
Stock issued upon conversion of the Non-Voting Common Stock issued pursuant to
that certain Common Stock Purchase Agreement dated April 2, 1997 by and between
the Company and Richard H. Williams and (vii) the Company's Voting Common Stock
issued pursuant to that certain Common Stock Purchase Agreement dated January
31, 1997 between the Company and Quokka Sports Pty Ltd. as trustee for Ozware
Developments Unit Trust.
A-70
<PAGE> 76
"Warrants" means (i) the warrants to purchase Voting Common Stock of the
Company issued pursuant to that certain Note and Warrant Purchase Agreement
dated October 31, 1997 among the Company and the Purchasers set forth on Exhibit
A thereto and (ii) the warrants, if any, held by Intel Corporation, MediaOne
Interactive Services, Inc. ("MediaOne"), any affiliate of MediaOne to whom such
warrants have been originally issued, NBC/Quokka Ventures, LLC or its assigns,
Comdisco, Inc. or its assigns, Championship Auto Racing Teams, Inc. or its
assigns and @Home or its assigns.
"ZoneNetwork Registrable Securities" means any of the shares of the
Company's Common Stock issued pursuant to the Agreement and Plan of Merger.
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER
2.1 Restrictions on Transfer.
(a) Each Holder agrees not to make any disposition of all or any portion of
the Non-Voting Common Stock, Shares or Registrable Securities unless and until:
(i) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is
made in accordance with such registration statement; or
(ii) (A) The disposition is made under Rule 144 or its equivalent, (B)
such Holder shall have notified the Company of the proposed disposition and
shall have furnished the Company with a statement of the circumstances
surrounding the proposed disposition, and (C) such Holder shall have
furnished the Company with an opinion of counsel that such disposition will
not require registration under the Securities Act if reasonably requested
by the Company, which request shall only be made in unusual circumstances;
or
(iii) (A) The transferee has agreed in writing to be bound by the
terms of this Rights Agreement, (B) such Holder shall have notified the
Company of the proposed disposition and shall have furnished the Company
with a statement of the circumstances surrounding the proposed disposition,
and (C) if reasonably requested by the Company, such Holder shall have
furnished the Company with an opinion of counsel, reasonably satisfactory
to the Company, that such disposition will not require registration of such
shares under the Securities Act. Notwithstanding anything to the contrary
in this Section 2.1(a)(iii), any Holder of Golf.com Registrable Securities
may engage in derivative, hedging or similar transactions (each, a
"Derivative Transaction") without complying with the requirement set forth
in subsection (A) above, provided that: (i) such Derivative Transaction
complies with the other restrictions set forth in this Section 2.1; (ii)
such Derivative Transaction does not have a settlement date (the date on
which the ownership of the underlying Registrable Securities should be
transferred) prior to one year from the date hereof; and (iii) the
transferee in such Derivative Transaction shall have no registration rights
under this Rights Agreement until such transferee has agreed in writing to
be bound by the terms of this Rights Agreement.
(iv) Notwithstanding the provisions of paragraphs (i), (ii) and (iii)
above, no such registration statement or opinion of counsel shall be
necessary for a transfer by a Holder which is (A) a partnership to its
partners or former partners in accordance with partnership interests, (B) a
corporation to its shareholders in accordance with their interest in the
corporation, or to a wholly-owned subsidiary or an affiliate of such
corporation (the term "affiliate" being defined herein as any other person
or entity directly or indirectly controlling, controlled by or under common
control with such person or entity, with "control" meaning the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of a person or entity, whether through the
ownership of voting securities or voting interests, by contract or
otherwise), (C) a limited liability company to its members or former
members in accordance with their interest in the limited liability company,
or (D) to the Holder's family member or trust for the benefit of an
individual Holder, provided any such transferee will be subject to the
terms of this Rights Agreement to the same extent as if he were an original
Holder hereunder.
(b) Each certificate representing the Shares or Registrable Securities
shall (unless otherwise permitted by the provisions of this Rights Agreement) be
stamped or otherwise imprinted with legends substantially
A-71
<PAGE> 77
similar to the following (in addition to any legend required under applicable
state securities laws or as provided elsewhere in this Rights Agreement):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED.
THE SALE, TRANSFER OR ASSIGNMENT OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY
AND THE REGISTERED HOLDER OR HIS PREDECESSOR IN INTEREST. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD
OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY.
(c) The Company shall be obligated to reissue promptly unlegended
certificates at the request of any holder thereof if the holder shall have
obtained an opinion of counsel (which counsel may be counsel to the Company)
reasonably acceptable to the Company to the effect that the securities proposed
to be disposed of may lawfully be so disposed of without registration,
qualification or legend.
(d) Any legend endorsed on an instrument pursuant to applicable state
securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
2.2 Demand Registration.
(a) Subject to the conditions of this Section 2.2, if the Company shall
receive a written request from the Holders of more than fifty percent (50%) of
the Registrable Securities then outstanding (the "Initiating Holders") that the
Company file a registration statement under the Securities Act covering the
registration of Registrable Securities having an aggregate offering price to the
public in excess of $10,000,000, then the Company shall, within twenty (20) days
of the receipt thereof, give written notice of such request to all Holders, and
subject to the limitations of this Section 2.2, use its best efforts to effect,
as soon as practicable, the registration under the Securities Act of all
Registrable Securities that the Holders request to be registered.
Notwithstanding any provision herein to the contrary, (i) one hundred percent
(100%) of the ZoneNetwork Registrable Securities held by each Holder of
ZoneNetwork Registrable Securities, and each such Holder's permitted transferees
or assignees, shall not be included in the Registrable Securities then
outstanding for the purposes of this Section 2.2(a) until the date six (6)
months from the date of the Original Investors' Rights Agreement, and thereafter
fifty percent (50%) of the ZoneNetwork Registrable Securities held by each
Holder of ZoneNetwork Registrable Securities, and each such Holder's permitted
transferees or assignees, shall not be included in the Registrable Securities
then outstanding until the date twelve (12) months from the date of the Original
Investors' Rights Agreement and (ii) one hundred percent (100%) of the Golf.com
Registrable Securities held by each Holder of Golf.com Registrable Securities,
and each such Holder's permitted transferees or assignees, shall not be included
in the Registrable Securities then outstanding for the purposes of exercising
the demand rights set forth in this Section 2.2(a) until the date six (6) months
from the date hereof, and thereafter fifty percent (50%) of the Golf.com
Registrable Securities held by each Holder of Golf.com Registrable Securities,
and each such Holder's permitted transferees or assignees, shall not be included
in the Registrable Securities then outstanding for the purposes of exercising
the demand rights set forth in this Section 2.2(a) until the date twelve (12)
months from the date hereof; provided that the restrictions set forth in this
sentence shall not be interpreted to limit the ability of any Holder of Golf.com
Registrable Securities from exercising their rights pursuant to Section 2.3
hereunder.
(b) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 2.2
or any request pursuant to Section 2.3 or 2.4 and the Company shall include such
information in
A-72
<PAGE> 78
the written notice referred to in Section 2.4(a) or Section 2.7(a), as
applicable. In such event, the right of any Holder to include its Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by a
majority in interest of the Initiating Holders (which underwriter or
underwriters shall be reasonably acceptable to the Company). Notwithstanding any
other provision of this Section 2.2, if the underwriter advises the Company that
marketing factors require a limitation of the number of securities to be
underwritten (including Registrable Securities) then the Company shall so advise
all Holders of Registrable Securities which would otherwise be underwritten
pursuant hereto, and the number of shares that may be included in the
underwriting shall be allocated to the Holders of such Registrable Securities
which would otherwise be underwritten pursuant hereto on a pro rata basis based
on the number of Registrable Securities held by all such Holders (including the
Initiating Holders). Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to
this Section 2.2:
(i) after the Company has effected two (2) registrations pursuant to
this Section 2.2, and such registrations have been declared or ordered
effective by the SEC; or
(ii) if the Company shall furnish to Holders requesting the filing of
a registration statement pursuant to this Section 2.2, a certificate signed
by the Chairman of the Board stating that in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company and its shareholders for such registration statement to be effected
at such time, in which event the Company shall have the right to defer such
filing for a period of not more than sixty (60) days after receipt of the
request of the Initiating Holders; provided that such right to delay a
request shall be exercised by the Company not more than twice in any twelve
(12) month period.
2.3 Piggyback Registrations. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to the filing
of any registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements under Sections 2.2, 2.4, 2.5 or 2.6 or relating to
secondary offerings of securities of the Company, but excluding registration
statements relating to employee benefit plans or with respect to corporate
reorganizations or other transactions under Rule 145 of the Securities Act) and
will afford each such Holder an opportunity to include in such registration
statement all or part of such Registrable Securities held by such Holder. Each
Holder desiring to include in any such registration statement all or any part of
the Registrable Securities held by it shall, within fifteen (15) days after the
above-described notice from the Company, so notify the Company in writing. Such
notice shall state the intended method of disposition of the Registrable
Securities by such Holder. If a Holder decides not to include all of its
Registrable Securities in any registration statement thereafter filed by the
Company, such Holder shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings
of its securities, all upon the terms and conditions set forth herein.
Notwithstanding any provision herein to the contrary, (i) one hundred percent
(100%) of the ZoneNetwork Registrable Securities held by each Holder of
ZoneNetwork Registrable Securities, and each such Holder's permitted transferees
or assignees, shall not be included in the Registrable Securities for the
purposes of this Section 2.3 until the date six (6) months from the date of the
Original Investors' Rights Agreement, and thereafter fifty percent (50%) of the
ZoneNetwork Registrable Securities held by each Holder of ZoneNetwork
Registrable Securities, and each such Holder's permitted transferees or
assignees, shall not be included in the Registrable Securities until the date
twelve (12) months from the date of the Original Investors' Rights Agreement and
(ii) fifty percent (50%) of the Golf.com Registrable Securities held by each
Holder of Golf.com Registrable Securities, and each such Holder's permitted
transferees or assignees, shall not be included in the Registrable Securities
for the purposes of this Section 2.3 until the date twelve (12) months from the
date hereof.
A-73
<PAGE> 79
(a) Underwriting. If the registration statement under which the Company
gives notice under this Section 2.3 is for an underwritten offering, the Company
shall so advise the Holders of Registrable Securities. In such event, the right
of any such Holder to be included in a registration pursuant to this Section 2.3
shall be conditioned upon such Holder's participation in such underwriting and
the inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their Registrable
Securities through such underwriting shall enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this Rights
Agreement, if the underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten, the number of
shares that may be included in the underwriting shall be allocated first, to the
Company; second, to the Holders on a pro rata basis based on the total number of
Registrable Securities held by the Holders who wish to sell in such offering;
and third, to any shareholder of the Company (other than a Holder of Registrable
Securities) on a pro rata basis. Notwithstanding the immediately preceding
sentence, in no event shall the amount of securities of the selling Holders
included in the registration be reduced below twenty-five percent (25%) of the
total amount of securities included in such registration. In no event will
shares of any other selling shareholder be included in any such registration
which would reduce the number of shares which may be included by Holders without
the written consent of Holders of more than fifty percent (50%) of the
Registrable Securities proposed to be sold in the offering. Notwithstanding
anything to the contrary in this Section 2.3(a), (i) in the event of a
registration pursuant to Section 2.5 in which the underwriter determines in good
faith that marketing factors require a limitation of the number of shares to be
underwritten, the number of shares that may be included in the underwriting
shall be allocated first, to the Holders of ZoneNetwork Registrable Securities;
second, to the Company; third, to other Holders on a pro rata basis based on the
total number of Registrable Securities held by such other Holders who wish to
sell in such offering; and fourth, to any shareholder of the Company (other than
a Holder of ZoneNetwork Registrable Securities or other Registrable Securities)
on a pro rata basis or (ii) in the event of a registration pursuant to Section
2.6 in which the underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten, the number of
shares that may be included in the underwriting shall be allocated first, to the
Holders of Golf.com Registrable Securities; second, to the Company; third, to
other Holders on a pro rata basis based on the total number of Registrable
Securities held by such other Holders who wish to sell in such offering; and
fourth, to any shareholder of the Company (other than a Holder of Golf.com
Registrable Securities or other Registrable Securities) on a pro rata basis.
(b) Right to Terminate Registration. The Company shall have the right to
terminate or withdraw any registration initiated by it under this Section 2.3
prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration. The Registration Expenses of
such withdrawn registration shall be borne by the Company in accordance with
Section 2.7 hereof.
2.4 Form S-3 Registration. In the event the Company shall receive a
written request from the Holders of more than fifty percent (50%) of the
Registrable Securities then outstanding (the "Initiating Holders") that the
Company effect a registration on Form S-3 (or any successor to Form S-3) or any
similar short-form registration statement and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders of Registrable
Securities; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Initiating
Holder's or Initiating Holders' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of any
other Holder or Holders joining in such request as are specified in a written
request given to the Company by any such other Holder or Holders within fifteen
(15) days after
A-74
<PAGE> 80
receipt of such written notice from the Company; provided, however, that the
Company shall not be obligated to effect any such registration, qualification or
compliance pursuant to this Section 2.4:
(i) if Form S-3 (or any successor or similar form) is not available
for such offering by the Holders, or
(ii) if the Holders, together with the holders of any other securities
of the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an aggregate
price to the public of less than $1,000,000, or
(iii) if the Company shall furnish to the Holders a certificate signed
by the Chairman of the Board of Directors of the Company stating that in
the good faith judgment of the Board of Directors of the Company, it would
be seriously detrimental to the Company for such Form S-3 Registration to
be effected at such time, in which event the Company shall have the right
to defer the filing of the Form S-3 registration statement for (a) a period
of not more than sixty (60) days after receipt of the request of the
Initiating Holder or Initiating Holders under this Section 2.4; and (b) a
period of not more than thirty (30) days after the lapse of the sixty (60)
day deferral referenced in Section 2.4(b)(iii)(a) immediately above;
provided, that such rights to delay a request shall be exercised by the
Company not more than once in any twelve (12) month period, or
(iv) if the Company has, within the twelve (12) month period preceding
the date of such request, already effected one (1) registration on Form S-3
for the Holders pursuant to this Section 2.4,
(v) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or
compliance, unless the Registered Securities would not, on account of this
limitation, be available for offer and sale in at least twenty states, or
(vi) if the Company has, within the one hundred eighty (180) day
period preceding the date of such request, effected a Company initiated
registration (other than a registration effected solely to qualify an
employee benefit plan or to effect a business combination pursuant to Rule
145).
(c) Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders.
Notwithstanding any provision herein to the contrary, (i) one hundred percent
(100%) of the ZoneNetwork Registrable Securities held by each Holder of
ZoneNetwork Registrable Securities, and each such Holder's permitted transferees
or assignees, shall not be included in the Registrable Securities then
outstanding for the purposes of this Section 2.4 until the date six (6) months
from the date of the Original Investors' Rights Agreement, and thereafter fifty
percent (50%) of the ZoneNetwork Registrable Securities held by each Holder of
ZoneNetwork Registrable Securities, and each such Holder's permitted transferees
or assignees, shall not be included in the Registrable Securities then
outstanding until the date twelve (12) months from the date of the Original
Investors' Rights Agreement (ii) one hundred percent (100%) of the Golf.com
Registrable Securities held by each Holder of Golf.com Registrable Securities,
and each such Holder's permitted transferees or assignees, shall not be included
in the Registrable Securities then outstanding for the purposes of exercising
the demand rights set forth in this Section 2.4 until the date six (6) months
from the date hereof, and thereafter fifty percent (50%) of the Golf.com
Registrable Securities held by each Holder of Golf.com Registrable Securities,
and each such Holder's permitted transferees or assignees, shall not be included
in the Registrable Securities then outstanding for the purposes of exercising
the demand rights set forth in this Section 2.4 until the date twelve (12)
months from the date hereof; provided that the restrictions set forth in this
sentence shall not be interpreted to limit the ability of any Holder of Golf.com
Registrable Securities from exercising their rights pursuant to Section 2.3
hereunder.
2.5 Form S-3 Registration for ZoneNetwork Registrable
Securities. Following the date six months from the date of the Original
Investors' Rights Agreement, in the event the Company shall receive a written
request from the Holders of more than fifty percent (50%) of the ZoneNetwork
Registrable Securities then
A-75
<PAGE> 81
outstanding (the "ZoneNetwork Initiating Holders") that the Company effect a
registration on Form S-3 (or any successor to Form S-3) or any similar
short-form registration statement and any related qualification or compliance
with respect to all or a part of the ZoneNetwork Registrable Securities owned by
such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders of Registrable
Securities; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such ZoneNetwork
Initiating Holder's or ZoneNetwork Initiating Holders' ZoneNetwork Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other Holder or Holders joining in such
request as are specified in a written request given to the Company by any such
other Holder or Holders within fifteen (15) days after receipt of such written
notice from the Company; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance pursuant
to this Section 2.5:
(i) if Form S-3 (or any successor or similar form) is not available
for such offering by the Holders, or
(ii) if the Holders propose to sell ZoneNetwork Registrable Securities
at an aggregate price to the public of less than $10,000,000, or
(iii) if the Company shall furnish to the Holders a certificate signed
by the Chairman of the Board of Directors of the Company stating that in
the good faith judgment of the Board of Directors of the Company, it would
be seriously detrimental to the Company for such Form S-3 Registration to
be effected at such time, in which event the Company shall have the right
to defer the filing of the Form S-3 registration statement for (a) a period
of not more than sixty (60) days after receipt of the request of the
ZoneNetwork Initiating Holder or ZoneNetwork Initiating Holders under this
Section 2.5; and (b) a period of not more than thirty (30) days after the
lapse of the sixty (60) day deferral referenced in Section 2.5(b)(iii)(a)
immediately above; provided, that such rights to delay a request shall be
exercised by the Company not more than once in any twelve (12) month
period, or
(iv) if the Company has already effected two (2) registrations on Form
S-3 for the Holders pursuant to this Section 2.5,
(v) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or
compliance, unless the Registrable Securities would not, on account of this
limitation, be available for offer and sale in at least twenty states, or
(vi) if the Company has, within the one hundred eighty (180) day
period preceding the date of such request, effected a Company initiated
registration (other than a registration effected solely to qualify an
employee benefit plan or to effect a business combination pursuant to Rule
145).
Subject to the foregoing, the Company shall file a Form S-3 registration
statement covering the ZoneNetwork Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Notwithstanding any provision herein to the
contrary, in the event the Company so elects, the Company shall be able to
include other equity securities of the Company is such Form S-3 registration
statement, provided that such inclusion does not reduce the number of
ZoneNetwork Registrable Securities included therein.
Notwithstanding any provision herein to the contrary, fifty percent (50%)
of the ZoneNetwork Registrable Securities held by each Holder of ZoneNetwork
Registrable Securities, and each such Holder's permitted transferees or
assignees, shall not be included in the ZoneNetwork Registrable Securities then
outstanding for the purposes of this Section 2.5 until the date twelve (12)
months from the date of the Original Investors' Rights Agreement.
A-76
<PAGE> 82
2.6 Form S-3 Registration for Golf.com Registrable Securities. Following
the date six months from the date hereof, in the event the Company shall receive
a written request from the Holders of more than fifty percent (50%) of the
Golf.com Registrable Securities then outstanding (the "Golf.com Initiating
Holders") that the Company effect a registration on Form S-3 (or any successor
to Form S-3) or any similar short-form registration statement and any related
qualification or compliance with respect to all or a part of the Golf.com
Registrable Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders of Registrable
Securities; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Golf.com
Initiating Holder's or Golf.com Initiating Holders' Golf.com Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other Holder or Holders joining in such
request as are specified in a written request given to the Company by any such
other Holder or Holders within fifteen (15) days after receipt of such written
notice from the Company; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance pursuant
to this Section 2.6:
(i) if Form S-3 (or any successor or similar form) is not available
for such offering by the Holders, or
(ii) if the Holders propose to sell Golf.com Registrable Securities at
an aggregate price to the public of less than $10,000,000, or
(iii) if the Company shall furnish to the Holders a certificate signed
by the Chairman of the Board of Directors of the Company stating that in
the good faith judgment of the Board of Directors of the Company, it would
be seriously detrimental to the Company for such Form S-3 Registration to
be effected at such time, in which event the Company shall have the right
to defer the filing of the Form S-3 registration statement for (a) a period
of not more than sixty (60) days after receipt of the request of the
Golf.com Initiating Holder or Golf.com Initiating Holders under this
Section 2.6; and (b) a period of not more than thirty (30) days after the
lapse of the sixty (60) day deferral referenced in Section 2.6(b)(iii)(a)
immediately above; provided, that such rights to delay a request shall be
exercised by the Company not more than once in any twelve (12) month
period, or
(iv) if the Company has already effected two (2) registrations on Form
S-3 for the Holders pursuant to this Section 2.6,
(v) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or
compliance, unless the Registrable Securities would not, on account of this
limitation, be available for offer and sale in at least twenty states, or
(vi) if the Company has, within the one hundred eighty (180) day
period preceding the date of such request, effected a Company initiated
registration (other than a registration effected solely to qualify an
employee benefit plan or to effect a business combination pursuant to Rule
145).
Subject to the foregoing, the Company shall file a Form S-3 registration
statement covering the Golf.com Registrable Securities and other securities so
requested to be registered as soon as practicable after receipt of the request
or requests of the Holders. Notwithstanding any provision herein to the
contrary, in the event the Company so elects, the Company shall be able to
include other equity securities of the Company is such Form S-3 registration
statement, provided that such inclusion does not reduce the number of Golf.com
Registrable Securities included therein.
Notwithstanding any provision herein to the contrary, fifty percent (50%)
of the Golf.com Registrable Securities held by each Holder of Golf.com
Registrable Securities, and each such Holder's permitted transferees or
assignees, shall not be included in the Golf.com Registrable Securities then
outstanding for the purposes of this Section 2.6 until the date twelve (12)
months from the date hereof.
A-77
<PAGE> 83
2.7 Expenses of Registration. Except as specifically provided in this
Section 2.7, all Registration Expenses incurred in connection with any
registration under Section 2.2, Section 2.3, Section 2.4, Section 2.5 or Section
2.6 herein shall be borne by the Company. All Selling Expenses incurred in
connection with any registrations hereunder shall be borne by the holders of the
securities so registered pro rata on the basis of the number of shares sold. The
Company shall not, however, be required to pay for expenses of any registration
proceeding begun pursuant to Section 2.2, the request of which has been
subsequently withdrawn by the Initiating Holders unless (a) the withdrawal is
based upon material adverse information concerning the Company of which the
Initiating Holders were not aware at the time of such request or (b) the Holders
of a majority of Registrable Securities agree to forfeit their right to one
requested registration pursuant to Section 2.2, in which event such right shall
be forfeited by all Holders). Additionally, the Company shall not be required to
pay for expenses in any registration proceeding begun pursuant to Section 2.4,
Section 2.5 or Section 2.6, the request of which has been subsequently withdrawn
by the Holders of the Registrable Securities to be included therein unless (a)
the withdrawal is based upon material adverse information concerning the Company
of which the Initiating Holders were not aware at the time of such request or
(b) the Holders of a majority of Registrable Securities agree that such
registration shall be deemed a completed registration for the purpose of Section
2.4(b), 2.5(b) or 2.6(b), as applicable. If the Holders are required to pay the
Registration Expenses, such expenses shall be borne by the Holders of securities
(including Registrable Securities) requesting such registration in proportion to
the number of shares for which such registration was requested.
2.8 Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(a) Prepare and file with the SEC a registration statement with respect to
such Registrable Securities and use all reasonable efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to ninety (90) days or, if earlier,
until the Holder or Holders have completed the distribution related thereto.
(b) Prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such number of copies of a prospectus, including
a preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities being registered by them.
(d) Use all reasonable efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, unless the Registered
Securities would not, on account of this limitation, be available for offer and
sale in at least twenty states.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and promptly file, and use reasonable efforts to cause to become
effective, an amendment to such registration statement to
A-78
<PAGE> 84
cause such registration statement not to include an untrue statement of material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances then
existing.
(g) Furnish, at the request of a majority of the Holders participating in
the registration, on the date that such Registrable Securities are delivered to
the underwriters for sale, if such securities are being sold through
underwriters, or, if such securities are not being sold through underwriters, on
the date that the registration statement with respect to such securities becomes
effective, (i) an opinion, dated as of such date, of the counsel representing
the Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities and (ii) a letter dated as of such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and if permitted by applicable accounting standards, to the Holders
requesting registration of Registrable Securities.
2.9 Termination of Registration Rights. All registration rights granted
under this Section 2 shall terminate and be of no further force and effect ten
(10) years after the date of the Company's Initial Offering. In addition, a
Holder's registration rights shall expire if (i) the Company has completed its
Initial Offering and is subject to the provisions of the Exchange Act, (ii) such
Holder (together with its affiliates, partners and former partners) holds less
than 1% of the Company's outstanding Common Stock (treating all shares of
convertible Preferred Stock on an as converted basis) and (iii) all Registrable
Securities held by and issuable to such Holder may be sold under Rule 144(k) or
all Registrable Securities held by and issuable to such Holder may be sold under
Rule 144 during any ninety (90) day period.
2.10 Delay of Registration; Furnishing Information
(a) No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 2.
(b) It shall be a condition precedent to the obligations of the Company to
take any action pursuant to Section 2.2, 2.3, 2.4, 2.5 or 2.6 that the selling
Holders shall furnish to the Company such information regarding themselves, the
Registrable Securities held by them and the intended method of disposition of
such securities as shall be required to effect the registration of their
Registrable Securities.
2.11 Indemnification. In the event any Registrable Securities are included
in a registration statement under Section 2.2, 2.3, 2.4, 2.5 or 2.6:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Holder, the partners, officers, affiliates, directors and legal
counsel of each Holder, any underwriter (as defined in the Securities Act) for
such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Securities Act or the Exchange Act, against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation") by the Company: (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement; and the
Company will reimburse (as and when incurred from time to time) each such
Holder, partner, officer or director, underwriter or controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement
A-79
<PAGE> 85
contained in this Section 2.11(a) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Company, which consent shall not be
unreasonably withheld, nor shall the Company be liable in any such case for any
such loss, claim, damage, liability or action to the extent that it arises out
of or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by such Holder, partner, officer, affiliate, director, underwriter
or controlling person of such Holder.
(b) To the extent permitted by law, each Holder will, severally and not
jointly, if Registrable Securities held by such Holder are included in the
securities as to which such registration qualifications or compliance is being
effected, indemnify and hold harmless the Company, each of its directors, its
officers, affiliates and legal counsel and each person, if any, who controls the
Company within the meaning of the Securities Act, any underwriter and any other
Holder selling securities under such registration statement or any of such other
Holder's partners, directors or officers or any person who controls such Holder,
against any losses, claims, damages or liabilities (joint or several) to which
the Company or any such director, officer, affiliate, controlling person,
underwriter or other such Holder, or partner, director, officer or controlling
person of such other Holder may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder under an instrument duly executed by such
Holder and stated to be specifically for use in connection with such
registration; and each such Holder, severally and not jointly, will reimburse
(as and when incurred from time to time) any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling person,
underwriter or other Holder, or partner, officer, director or controlling person
of such other Holder in connection with investigating or defending any such
loss, claim, damage, liability or action if it is judicially determined that
there was such a Violation; provided, however, that the indemnity agreement
contained in this Section 2.11(b) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Holder, which consent shall not be
unreasonably withheld; provided further, that in no event shall any indemnity
under this Section 2.11 exceed the net proceeds from the offering received by
such Holder.
(c) Promptly after receipt by an indemnified party under this Section 2.11
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 2.11, deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party shall have the right to retain its
own counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding or if the counsel retained by the indemnifying party
fails to assume the representation of the indemnified party. The failure to
deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action, shall not relieve such indemnifying party of
any liability to the indemnified party under this Section 2.11, except to the
extent that the indemnifying party is materially prejudiced by such delay, but
the omission so to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party otherwise
than under this Section 2.11.
(d) If the indemnification provided for in this Section 2.11 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any losses, claims, damages or liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall to the extent permitted by applicable law contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the
A-80
<PAGE> 86
Violation(s) that resulted in such loss, claim, damage or liability, as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by a court
of law by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission; provided, that in no event
shall any contribution by a Holder hereunder exceed the proceeds from the
offering received by such Holder.
(e) The obligations of the Company and Holders under this Section 2.11
shall survive completion of any offering of Registrable Securities in a
registration statement. No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
2.12 Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Section 2 may be assigned by a
Holder to any transferee or assignee of Registrable Securities which (i) is a
person or entity which holds Registrable Securities pursuant to a transfer
permitted by Section 2.1(a)(iii) or Section 2.1(a)(iv), or (ii) acquires at
least fifty thousand (50,000) shares of Registrable Securities (as adjusted for
stock splits and combinations); provided, however, (A) the transferor shall
furnish to the Company written notice of the name and address of such transferee
or assignee and the securities with respect to which such registration rights
are being assigned, it being understood that, until such time as the Company
receives such written notice, the Company is under no obligation to treat such
transferee or assignee as a holder of registration rights, and (B) such
transferee shall agree to be subject to all restrictions set forth in this
Rights Agreement.
2.13 Amendment of Registration Rights. Any provision of this Section 2 may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Holders of more than fifty percent (50%)
of the Registrable Securities then outstanding, provided that such amendment or
waiver does not differentiate among similarly situated stockholders. Any
amendment or waiver effected in accordance with this Section 2.13 shall be
binding upon each Holder and the Company. By acceptance of any benefits under
this Section 2, Holders of Registrable Securities hereby agree to be bound by
the provisions hereunder.
2.14 Limitation on Subsequent Registration Rights. After the date of this
Rights Agreement, the Company shall not, without the prior written consent of
the Holders of more than fifty percent (50%) of the Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company that would grant such holder registration rights senior to those
granted to the Holders hereunder.
2.15 "Market Stand-Off" Agreement. Each Holder hereby agrees that such
Holder shall not sell or otherwise transfer or dispose of any Common Stock (or
other securities) of the Company held by such Holder (other than those included
in the registration) for a period specified by the representative of the
underwriters of Common Stock (or other securities) of the Company not to exceed
ninety (90) days following the effective date of each registration statement
filed by the Company, provided that all officers and directors of the Company
enter into similar agreements and that, to the extent that any such officer or
director is released from any such agreement, the Holders shall also be released
to such extent from the restriction contained in this Section 2.15. Nothing in
this Section 2.15 shall limit the ability of any Holder of Golf.com Registrable
Securities from engaging in derivative, hedging or similar transactions in
compliance with Section 2.1 hereof.
Each Holder agrees to execute and deliver such other agreements as may be
reasonably requested by the Company or the underwriter which are consistent with
the foregoing or which are necessary to give further effect thereto. The
obligations described in this Section 2.15 shall not apply to a registration
relating solely to employee benefit plans on Form S-1 or Form S-8 or similar
forms that may be promulgated in the future, or a registration relating solely
to a Commission Rule 145 transaction on Form S-4 or similar forms that may be
promulgated in the future. The Company may impose stop-transfer instructions
with respect to the shares of
A-81
<PAGE> 87
Common Stock (or other securities) subject to the foregoing restriction until
the end of said ninety (90) day period.
2.16 Rule 144 Reporting. With a view to making available to the Holders
the benefits of certain rules and regulations of the SEC which may permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public;
(b) File with the SEC, in a timely manner, all reports and other documents
required of the Company under the Exchange Act;
(c) So long as a Holder owns any Registrable Securities, furnish to such
Holder forthwith upon request: a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 of the Securities
Act, and of the Exchange Act (at any time after it has become subject to such
reporting requirements); a copy of the most recent annual or quarterly report of
the Company; and such other reports and documents as a Holder may reasonably
request in availing itself of any rule or regulation of the SEC allowing it to
sell any such securities without registration.
SECTION 3. AFFIRMATIVE COVENANTS OF THE INVESTORS
3.1 Confidential Information, Etc. In addition to the provision set forth
in Sections 6.12 and 6.13, each Investor agrees that (a) all information
received by such Investor pursuant to the Original Investor Rights Agreement or
any predecessor thereof and (b) any other information, including without
limitation information relating to the Company's customers, technology,
processes or formulas, that (i) is disclosed by the Company to such Investor and
(ii) is identified by the Company as being confidential or proprietary, shall be
considered confidential information. Each Investor further agrees that such
Investor shall hold all such confidential information in confidence and shall
not disclose any such confidential information to any third party other than
such Investor's counsel or accountants nor shall such Investor use such
confidential information for any purpose other than evaluation of such
Investor's investment in the Company; provided, however, that the foregoing
obligation to hold in confidence and not to disclose confidential information
shall not apply to any such information that (1) was available to the public
prior to disclosure by the Company, (2) becomes available to the public through
no fault of such Investor, (3) is disclosed to such Investor on a non-
confidential basis by a third party, provided that the Investor determines after
reasonable inquiry that the third party has a legal right to make such
disclosure or (4) is independently developed by such Investor.
SECTION 4. MISCELLANEOUS
4.1 Governing Law. This Rights Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
4.2 Survival. The representations, warranties, covenants, and agreements
made herein shall survive any investigation made by any Holder and the closing
of the transactions contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
4.3 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of the parties hereto
and shall inure to the benefit of and be enforceable by each person who shall be
a holder of Registrable Securities from time to time; provided, however, that
prior to the receipt by the Company of adequate written notice of the transfer
of any Registrable Securities specifying the full name and address of the
transferee, the Company may deem and treat the person listed as the holder of
such shares in its records as
A-82
<PAGE> 88
the absolute owner and holder of such shares for all purposes, including the
payment of dividends or any redemption price.
4.4 Entire Agreement. This Rights Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof.
4.5 Severability. In case any provision of this Rights Agreement shall be
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
4.6 Amendment and Waiver.
(a) Except as otherwise expressly provided, this Rights Agreement may be
amended or modified only upon the written consent of the Company and the holders
of more than fifty percent (50%) of the Registrable Securities; provided,
however, that if such amendment or waiver differentiates among similarly
situated stockholders or materially, adversely affects specific stockholders or
groups of stockholders then the consent of the holders of more than fifty
percent (50%) of the Registrable Securities held by such affected stockholders
or group of stockholders shall additionally be required.
(b) Except as otherwise expressly provided, the obligations of the Company
and the rights of the Holders under this Rights Agreement may be waived only
with the written consent of the holders of more than fifty percent (50%) of the
Registrable Securities; provided, however, that if such amendment or waiver
differentiates among similarly situated stockholders or materially, adversely
affects specific stockholders or groups of stockholders then the consent of the
holders of more than fifty percent (50%) of the Registrable Securities held by
such affected stockholders or group of stockholders shall additionally be
required.
(c) Each Holder acknowledges that by the operation of this Section 4.6, the
holders of more than fifty percent (50%) of the Registrable Securities may have
the right and power to diminish or eliminate all rights of such Holder under
this Rights Agreement.
(d) Notwithstanding the foregoing, this Rights Agreement may be amended
with only the written consent of the Company to include additional purchasers of
Shares as "Investors," "Holders" and parties hereto.
4.7 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Rights Agreement shall impair
any such right, power, or remedy, nor shall it be construed to be a waiver of
any such breach, default or noncompliance, or any acquiescence therein, or of
any similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character on
any Holder's part of any breach, default or noncompliance under this Rights
Agreement or any waiver on such Holder's part of any provisions or conditions of
this Rights Agreement must be in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either under this
Rights Agreement, by law, or otherwise afforded to Holders, shall be cumulative
and not alternative.
4.8 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, (iv) one (1) day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt, or (v) if earlier, upon receipt. All
communications shall be sent to the party to be notified at the address as set
forth on Exhibit A hereto or at such other address as such party may designate
by ten (10) days advance written notice to the other parties hereto.
4.9 Attorneys' Fees. In the event that any dispute among the parties to
this Rights Agreement should result in litigation, the prevailing party in such
dispute shall be entitled to recover from the losing party all fees, costs and
expenses of enforcing any right of such prevailing party under or with respect
to this Rights Agreement, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include, without limitation,
all fees, costs and expenses of appeals.
A-83
<PAGE> 89
4.10 Titles and Subtitles. The titles of the sections and subsections of
this Rights Agreement are for convenience of reference only and are not to be
considered in construing this Rights Agreement.
4.11 Counterparts. This Rights Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
4.12 Protection of Confidential Information. The investment in the Company
by Intel Corporation ("Intel"), including the specific terms thereof, shall be
considered confidential information (the "Confidential Information") and shall
not be disclosed by the Company or any other party to this Rights Agreement to
any third party, subject to Section 4.13 below. Each party shall immediately
notify the other parties of any information that comes to its attention which
might indicate that there has been a loss of confidentiality with respect to the
Confidential Information. In the event that the Company or any other party
becomes legally compelled (by statute or regulation or by oral questions,
interrogatories, request for information or documents, subpoena, criminal or
civil investigative demand or similar process, including without limitation, in
connection with any public or private offering of the Company's capital stock)
to disclose any of the Confidential Information, such party (the "Disclosing
Party") shall provide the other party (the "Non-Disclosing Party") with prompt
written notice of that fact so that the appropriate party may seek (with the
cooperation and commercially reasonable efforts of the other parties) a
protective order, confidential treatment or other appropriate remedy. In such
event, the Disclosing Party shall furnish only that portion of the Confidential
Information which is legally required and shall exercise commercially reasonable
efforts to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information to the extent reasonably requested by the
Non-Disclosing Party. The provisions of this Section 4.12 shall be in addition
to, and not in substitution for, the provisions of any separate nondisclosure
agreement executed by Intel and the Company with respect to any collaboration or
similar agreement.
4.13 Disclosure of Terms: Press Releases. Notwithstanding the provisions
of Section 4.12 above, from and after the Closing (as defined in that certain
Series C Preferred Stock Purchase Agreement dated December 23, 1998) the Company
may disclose the Confidential Information, (i) solely to the Company's
investors, investment bankers, lenders, accountants, legal counsel, business
partners, and bona fide prospective investors, employees, lenders and business
partners, in each case only where such persons or entities are under appropriate
nondisclosure obligations and (ii) as may be required pursuant to the Securities
Act or Exchange Act. In addition, the Company may disclose the fact that Intel
is an investor in the Company to third parties without the requirement for
nondisclosure agreements. Within sixty (60) days of the Closing, the Company may
issue a press release disclosing that Intel has invested in the Company,
provided that the release does not disclose the amount or other specific terms
of the investment and is approved in advance in writing by Intel. Intel, at its
sole discretion, may provide an executive quote or other material regarding its
investment in the Company. Except for such disclosure and press release, no
other announcement regarding Intel's investment in the Company in a press
conference, in any professional or trade publication, in any marketing materials
or otherwise to the general public may be made without the prior written consent
of Intel, which consent may be withheld at the sole discretion of Intel.
Notwithstanding the foregoing and the provisions of Section 4.12 above, from and
after the Closing, Intel may disclose its investment in the Company and the
terms thereof to third parties or to the public at its discretion, and the
Company shall have the right to disclose to third parties any information
disclosed by Intel in a press release or other public announcement or document.
If the Company or Intel determines that any disclosure not otherwise authorized
by this Section 4.13 is required by law or regulation, then the provisions of
Section 4.12 regarding disclosure of Confidential Information by a Disclosing
Party shall govern. Notwithstanding the provisions of Section 4.12 above, from
and after the Closing, any party hereunder may disclose the Confidential
Information as may be required pursuant to the Securities Act or Exchange Act.
A-84
<PAGE> 90
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
<TABLE>
<S> <C>
COMPANY: INVESTORS:
QUOKKA SPORTS, INC.
By: By:
---------------------------------------- ----------------------------------------
Alan Ramadan
President
Name of Investor:
------------------------
Name of Signatory:
-----------------------
(if applicable)
Title of Signatory:
-------------------------
(if applicable)
</TABLE>
[AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
A-85
<PAGE> 91
EXHIBIT A
ADDRESSES
THE COMPANY
Quokka Sports, Inc.
525 Brannan Street, Ground Floor
San Francisco, CA 94107
Attention: Mr. Alan Ramadan
Telephone: 415-908-3800
Fax: 415-908-1841
INVESTORS
Mr. Richard H. Williams
Incline Village
625 Anderson Drive
P.O. Box 4281
Incline Village, NV 89450
Telephone: 415-782-6050
Fax: 415-292-7544
Bayview Investors Ltd.
c/o Robertson, Stephens & Company
555 California Street
23rd Floor
San Francisco, CA 94104
Attn: Sy Kaufman
Telephone: 415-676-2618
Fax: 415-676-2650
Wakefield Group II LLC
1110 East Morehead
Charlotte, NC 28204
Attn: Mike Elliott
Telephone: 704-372-0355
Fax: 704-372-8978
Bregman Revocable Trust u/a/d 8/21/92
Walter W. Bregman, ttee
Roberta F. Bregman, ttee
4629 Vista de la Tierra
Del Mar, CA 92014
Telephone: 619-792-6185
Fax: 619-792-9285
Roel Pieper
Koninklijke Philips Electronics
Rembrand Tower HRT24
Amstelplein 1
NL-1096HA Amsterdam
Netherlands
Telephone: +31 (20) 59 77 162
Fax: +31 (20) 59 77 160
A-86
<PAGE> 92
Alan Ramadan
c/o Quokka Sports, Inc.
Ground Floor
525 Brannan Street
San Francisco, CA 94107
Telephone: 415-908-3800
Fax: 415-908-1841
Pogmohane Partners, L.P.
c/o Alan Ramadan, General Partner
Quokka Sports, Inc.
Ground Floor
525 Brannan Street
San Francisco, CA 94107
Telephone: 415-908-3800
Fax: 415-908-1841
(with a copy to: John J. Buttita
Altheimer & Gray Law Offices
10 South Wacker Drive
Chicago, Illinois 60606-7482
Telephone: 312-715-4000
Fax: 312-715-4800)
John Bertrand
c/o Quokka Sports, Inc.
Ground Floor
525 Brannan Street
San Francisco, CA 94107
Telephone: 415-908-3800
Fax: 415-908-1841
Intel Corporation
c/o Tamiko Hutchinson
2200 Mission College Blvd. SC4-210
Santa Clara, CA 95052-8119
Telephone: (408) 765-5636
Fax: (408) 765-6038
Steve Nelson
c/o Quokka Sports, Inc.
Ground Floor
525 Brannan Street
San Francisco, CA 94107
Telephone: 415-908-3800
Fax: 415-908-1841
Media Technology Ventures, L.P.
Media Technology Ventures Entrepreneurs Fund, L.P.
Media Technology Equity Partners, L.P.
One First Street, Suite Two
Los Altos, CA 94022
Attn: Barry M. Weinman
Telephone: 415-949-9862
Fax: 415-949-8510
A-87
<PAGE> 93
Trinity Ventures Ltd.
Trinity Ventures V, L.P.
Trinity V, side-by-side fund, L.P.
c/o Mr. James G. Shennan, Jr.
3000 Sand Hill Road
Bldg. 1, Suite 240
Menlo Park, CA 94025
Telephone: 650-854-9500
Fax: 650-854-9501
GC&H Investments
c/o Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, CA 94111-3580
Attn: John Cardoza
Telephone: 415-693-2000
Fax: 415-951-3699
Stanford University
Stanford Management Company
c/o Carol Gilmer
2770 Sand Hill Road
Menlo Park, CA 94025
Telephone: 650-926-0244
Fax: 650-854-9267
Accel VI L.P.
Accel Internet Fund II L.P.
Accel Keiretsu VI L.P.
Accel Investors '98 L.P.
428 University Avenue
Palo Alto, CA 94301
Attn: Bruce Golden
Telephone: 650-614-4800
Fax: 650-614-4880
(Copy to:
Accel Partners
One Palmer Square
Princeton, NJ 08542
Attn: G. Carter Sednaoui
Telephone: (609) 683-4500
Fax: (609) 683-0384)
MediaOne Interactive Services, Inc.
9000 E. Nichols Ave., Suite 100
Englewood, CO 80112
Attn: Natalie Egleston
Telephone: 303-705-7680
Fax: 303-705-5109
A-88
<PAGE> 94
The Karr Family 1982 Trust, dated 12/1/82, as amended
Attn: Howard Karr
1777 Borel Place, #408
San Mateo, CA 94402
Telephone: 650-574-5277
Fax: 650-574-0310
Outcast Communications, Inc.
c/o Caryn Marooney
1696B Green Street
San Francisco, CA 94123
Telephone: 510-596-0994
Fax: 510-649-8895
The Les Schmidt and JoAnne P. Hattum Family Trust U/T/D 4/8/92
c/o Quokka Sports, Inc.
525 Brannan Street, Ground Floor
San Francisco, CA 94107
Attn: Les Schmidt
Telephone: 415-908-3800
Fax: 415-908-1841
The Schmidt Family Irrevocable Trust Dtd. 12/27/95 FBO Caryn H. Schmidt
The Schmidt Family Irrevocable Trust Dtd. 12/27/95 FBO Bryan P. Schmidt
The Schmidt Family Irrevocable Trust Dtd. 12/27/95 FBO Taylor G. Schmidt
Charles H. Packer, Trustee
c/o Quokka Sports, Inc.
525 Brannan Street, Ground Floor
San Francisco, CA 94107
Attn: Les Schmidt
Telephone: 415-908-3800
Fax: 415-908-1841
Charles Bates Thornton Trust
Henry Haskell Rightor Thornton Trust
Jane Cordelia Laney Thornton Trust
Anne Chapman Thornton Trust
Musick, Peeler & Garrett, LLP
One Wilshire Blvd., Suite 2000
Los Angeles, CA 90017
Telephone: 213-629-7657
Attn: Edward A. Landry
The Ignite Group
c/o Steve Payne, Venture Partner
255 Shoreline Drive, Suite 510
Redwood City, CA 94065
Telephone: (650) 622-2030
Fax: (650) 622-2015
A-89
<PAGE> 95
Omega Ventures II, L.P.
Omega Ventures II Cayman, L.P.
Crossover Fund II, L.P.
Crossover Fund IIA, L.P.
c/o Sy Kaufman
555 California Street, 23rd Floor
San Francisco, CA 94104
Telephone: (415) 693-3311
Fax: (415) 676-2556
Michael Carter
c/o Growth Phase Europe Ltd.
50 Margravine Gardens
London, England W6 8RJ
(With a copy to:
Growth Phase Europe
349 Liberty Street
San Francisco, CA 94114
Attn: Matt Hall
Telephone: (415) 385-5639
Fax: (415) 641-4297)
Gerardo Seeliger
12 Elystan Street
London SW3, England
-- Send documents DHL to:
SeeligerY Conde
Velazquez, 18
28001 Madrid, Espana
Spain
Telephone: +34 1 577 99 77
Fax: +34 (1) 577 41 24
Riemer 1991 Revocable Trust
David Riemer
1611 Bonita Avenue
Berkeley, CA 94709
Telephone: (415) 908-3800
Fax: (415) 908-1841
M. Elizabeth Sandell
c/o Quokka Sports, Inc.
525 Brannan Street, Ground Floor
San Francisco, CA 94107
Attn: Les Schmidt
Telephone: (415) 908-3800
Fax: (415) 908-1841
A-90
<PAGE> 96
Liberty QS, Inc.
9197 South Peoria Street
Englewood, CO 80112
Attn: Bruce Ravenal
Phone: (720) 875-5928
Fax: (720) 875-7236
E-mail: bruce@libertymedia.com
(with a copy to General Counsel at the same Address)
Hearst Communications, Inc.
959 Eighth Avenue
New York, NY 10019
Attn: Scott English, Vice President
Phone: (212) 649-2464
Fax: (212) 582-7739
E-mail: senglish@hearst.com
MeriTech Capital Partners LP
428 University Avenue
Palo Alto, CA 94301
Attn: Rob Ward
Phone: (650) 330-5472
Fax: (650) 614-4880
E-mail: rward@meritechcapital.com
Comcast Interactive Investments, Inc.
1201 Market Street
Suite 2201
Wilmington, DE 19801
Attn: Judie Dionglay, Vice President
Phone: (302) 594-8701
Fax: (302) 658-1600
E-Mail: judie-dionglay@comcast.com
AtHome Corporation
425 Broadway Street
Redwood City, CA 94063
Attn: Suneet Wadhwa
Phone: (650) 569-5139
Fax: (650) 569-5139
(with a copy to:
Mark Stevens
Excite @Home
475 Broadway Street
Redwood City, CA 94063
Phone: (650) 298-4477
Fax: (650) 298-4492)
A-91
<PAGE> 97
Crossover Fund II
c/o Omega Ventures
555 California Street, Suite 2350
San Francisco, CA 94104
Attn: Dan Dunn
Phone: (415) 676-2931
Fax: (415) 788-4665
E-mail: dan-dunn@rsco.com
Pivotal Partners, L.P.
1 Embarcadero Center, 23rd Floor
San Francisco, CA 94111
Attn: Christopher Lord
Phone: (415) 362-0292
Fax: (415) 249-1555
E-mail: clord@sf.amerindo.com
BT (Netherlands) Holdings B.V.
Overschiestraat 65
1062 XD Amsterdam
The Netherlands
Attn: Company Secretary
(with a copy to:
Kerry Phillip
Phone: 011-44-171-356-6389
Fax: 011-44-171-356-4012
E-mail: kerry.d.phillip@bt.com
William Allison
5503 30th Avenue NE. Apt. C
Seattle, WA 98105
Joel Altshule
1339 N. Capri Dr.
Pacific Palisades, CA 90272
Phone: 310-459-1980
Thomas Armor
2029 Ocean Key Drive
Boca Raton, FL 33498
Tel: 561-451-2015
Robert Arnold
1001-4th Avenue Plaza, #4710
Seattle, WA 98154
Phone: 206-358-0333
James Backer
PO Box 9327
Seattle, WA 98109
Jolie Backer
PO Box 9327
Seattle, WA 98109
A-92
<PAGE> 98
John Ballantine
1510 Grand Avenue
Seattle, WA 98122
Phone: 206-264-7600
Robert E. Bayley
5505 Lake Washington Blvd. #3E
Seattle, WA 98033
Frederick Blume
5385 Old Stage Rd.
Boulder, CO 80302-9412
Phone: 303-444-1258
Rodney Blumenstein
Rod Asher & Asso
7800 78th Ave. SE
Mercer Island, WA 98040
Phone: 206-232-2555
BMK Investments
c/o Phil Boren
8560 NE Gordon Dr.
Bainbridge Island, WA 98110
Phone: 206-842-4601
Rebecca Bradshaw
1401 5th Avenue W, #1401
Seattle, WA 98119
Edward & Pamela Bridge
PO Box 1908
Seattle, WA 98111
Phone: 206-448-8800
Cliff Brooks
2020 W. Beaver Lake Dr. SE
Issaquah, WA 98027
Phone: 206-329-9613
James Bruton
355 Capt. Thomas Blvd., #66
West Haven, CT 06516
Phone: 203-933-0598
Todd Burleson
121 Mercer Street
Seattle, WA 98109
Adam Chapman
151 Calyer Street, #3
Brooklyn, NY 11222
Tim Choate
Freeshop.com
95 Jackson
Seattle, WA 98104
Phone: 206-441-9100 x 173
A-93
<PAGE> 99
Brent Cook
CobWeb, Inc.
1065 12th Avenue NE, Suite E2
Issaquah, WA 98027
Tel: 206-937-8804
Gary Craig
7900 SE 28th, #401
Mercer Island, WA 98040
Phone: 206-230-8144
Fax: 206-236-2045
Robert Crist
2234 Killarney Way
Bellevue, WA 98004
Phone: 425-454-9120
Steve Cullen
iTango Software
1015 Third Avenue, Suite 1000
Seattle, WA 98104
Phone: 206-624-6888 x212
Fax: 206-624-8851
Andy Weissman
Dawntreader
826 Broadway, 7th Floor
New York, NY 10003
Tel: 646-654-2600
Fax: 646-654-2654
David Eckert
8355 Avalon Drive
Mercer Island, WA 98040
Dan Elenbaas
13916 185th Ct NE
Woodinville, WA 98072
Phone: 425-702-9020
Norm Ely
PO Box 1442
Grass Valley, CA 95945
Tel: 530-477-5777
Evergreen Partners
1218 Third Ave., #1111
Seattle, WA 98101
Gary Ferguson
13608 NE 36th Place
Bellevue, WA 98005
Phone: 425-895-8367
A-94
<PAGE> 100
Fingerhut Companies, Inc.
c/o Michael Sherman
4400 Baker Road
Minnetonka, MN 55343
Phone: 612-932-3585
Fax: (612) 936-5412
Eddie Fisher
P.O. Box 1887
Bellevue, WA 98009
Phone: 206-285-4544
John Fitzpatrick
16709-168th Place NE
Woodinville, WA 98072-8985
Phone: 206-441-8285 x205
Skip Franklin
Phototrust.com
1500-114th Avenue SE, #130
Bellevue, WA 98004
Phone: 425-468-9056
Fax: (425) 468-9099
Dr. Francis Galey
35 Corthell Road
Laramie, WY 82070
Phone: 307-742-6322
Fax: 307-755-5440
Gretchen Garth
16347 Inglewood Pl. NE
Bothell, WA 98011
Phone: 425-487-3037
Scott Roberts
The Genesis Group
c/o eTranslate
520 Third Street, Suite 505
San Francisco, CA 94107
Phone: 415-371-0000
Todd Gilbertson
16037 NE 165th St.
Woodinville, WA 98072
Phone: 206-489-9702
Michael Goldfarb
1420 5th Ave. #2625
Seattle, WA 98101
Phone: 206-346-9900
A-95
<PAGE> 101
Chuck Gottschalk
ZoneNetwork.com
1415 Western Avenue, Suite 300
Seattle, WA 98101
Tel: 206-621-8630 x102
Fax: 206-903-8638
Keith Grinstein
1191 2nd Ave., Suite 1600
Seattle, WA 98101
Phone: 206-749-8350
Bert Hafen
Bear Stearns
245 Park Avenue
New York, NY 10167
Phone: 800-926-4431
Jim Harding
23233 SE 47th Way
Issaquah, WA 98029
Phone: 425-391-0826
Jeremy Jaech
2211 Elliott Ave.
Seattle, WA 98121
Phone: 206-956-6510
Marka Jenkins
2101 4th Ave. #1250
Seattle, WA 98121
Kent Johnson
13862 NE 8th, #C-306
Bellevue, WA 98005
Phone: 206-382-9961
Neil (Nick) Keller
3209 17th Ave. W
Mercer Island, WA 98119
Phone: 206-385-3300
Gaylord Kellogg
270 Lake Dell Avenue
Seattle, WA 98122
Phone: 206-726-9480
Keough Investments, LLC
Attn. Clarke Keough
Allen & Company
711 5th Avenue
New York, NY 10022
Phone: 212-832-8000
Fax: 212-339-2362
A-96
<PAGE> 102
Frank Kitchell
1218 Third Ave., #1111
Seattle, WA 98101
Phone: 206-623-2425
J.B. Kuppe
c/o Design Variations
900 A Street, Suite 301
San Rafael, CA 94903
Melanie Lemaire
901 1st Avenue N.
Seattle, WA 98105
Tel: 206-282-2833
Chris Lewis
2116 40th Ave. E
Seattle, WA 98112
Phone: 206-323-4573
Johan Liedgren
2017 11th Ave. E
Seattle, WA 98102
Phone: 206-329-8165
Gary Linden
4348 Hunts Point Rd.
Bellevue, WA 98004
Sarah Love-Sheehan
6015 Woodlawn Place N.
Seattle, WA 98103
Tel: 206-621-8630 x176
Fax: 206-621-0651
Jeffrey S. Lum
2651 134th Ave. NE
Bellevue, WA 98005
Phone: 425-936-8851
David Lundquist
c/o Louis Lundquist
8621 NE 6th Street
Medina, WA 98039
Phone: 425-454-5830
Louis Lundquist
8621 NE 6th Street
Medina, WA 98039
Phone: 425-454-5830
Sara Machlin
1804 Republican #4
Seattle, WA 98115
Tel: 206-621-8630 x177
Fax: 206-621-0651
A-97
<PAGE> 103
Marketwave, Inc.
Attn. Steven Podradchik
201 Queen Anne Ave. #401
Seattle, WA 98109
Phone: 206-682-6801
Robin Marks
1409 Funston Ave
San Francisco, CA
Tel: 415-564-5450
Pamela McCabe
2221 Federal Ave. E
Seattle, WA 98102
Phone: 206-323-6230
Lance McIntosh
20335 NE 61st Court
Redmond, WA 98053
Phone: 206-836-2878
David Mencin
P.O. Box 855
Boulder, CO 80306
Phone: 305-507-9535
Morgen Walke Partners
Attn. David Walke
380 Lexington Ave., 50th Floor
New York, NY 10168-5199
Phone: 212-850-5600
Furman & Susan Moseley
310 39th Ave. E
Seattle, WA 98112
Phone: 206-224-5195
MST Partnership
c/o Tote
1100 Olive Way, Suite 1100
Seattle, WA 98101
Phone: 206-628-9254
Douglas Mullis
1211-101st Place NE
Bellevue, WA 98004
Tel: 206-621-8630 x105
Ronald Neubauer
315 2nd Ave. S
Seattle, WA 98104
Phone: 206-622-7050
A-98
<PAGE> 104
Harold Nizamian
Timeless Toys
1165 Chess Drive, #C
San Mateo, CA 94404-1113
Phone: 650-856-1124
Fax: 650-856-1138
Daniel Nordstrom
Nordstrom's
600 University Ave, #600
Seattle, WA 98101
Phone: 206-373-4040
Fax: 206-373-4035
John Nyberg
700 Kalmia Place NW
Issaquah, WA 98027
Phone: 206-392-6036
Peter O'Dell
10023 NE 155th St.
Bothell, WA 98011
Phone: 425-785-6247
Timothy O'Keefe
P.O. Box 5045
Bellevue, WA 98009
Phone: 206-454-6805
Tom O'Keefe
2020 Evergreen Point Rd.
Medina, WA 98039
Phone: 206-233-2071
S. B. Olney
1929 Mill Pointe Dr. SE
Mill Creek, WA 98012
Phone: 425-406-6069
Suzanne Olsen
C/o CobWeb
1065 12th Avenue NW, Suite E2
Issaquah, WA 98027
Tel: 425-392-4535
Fax: 425-392-4726
Randy Ottinger
18 Brook Bay Rd.
Mercer Island, WA 98040-4622
Phone: 206-747-7277
Carol Padelford
1421 39th Ave. E
Seattle, WA 98112
Phone: 206-323-7860
A-99
<PAGE> 105
John Parkey
2425 60th Ave. SE
Mercer Island, WA 98040
Phone: 206-889-2999
Fax: 206-889-0661
Mitch Pindus
228 S. Medio Drive
Los Angeles, CA 90049
Tel: 800-421-4314
Greg Prosl
1827 N 55th
Seattle, WA 98103
Phone: 206-621-8630 x190
Fax: 206-621-0651
Hans Prosl
908 Florida Street, #6
Huntington Beach, CA 92648
Christine Raedeke
220 N 57th
Seattle, WA 98103
Gordon Raine
1424 4th Avenue, #710
Seattle, WA 98101
Howard Rheingold
306 Poplar
Mill Valley, CA 94941
Kenneth Robertson
6109 224 Ave., NE
Redmond, WA 98053
Phone: 425-936-5894
Scot Schmidt
1000 Hidden Valley Rd.
Soquel, CA 95073
Manfred Schmiedl
21721 NE 103rd St.
Redmond, WA 98053
Phone: 425-868-7150
Jeff Schoenfeld
J-Max Capital
1420 5th Ave., #2200
Seattle, WA 98101
Phone: 206-224-3499
A-100
<PAGE> 106
Walter Schoenfeld
Access Long Distance
999 Third Avenue, #3800
Seattle, WA 98104
Phone: 206-448-2700
Fax: (206) 441-7027
Andy Sturner
Sportsline.com
6340 NW 5th Way
Fort Lauderdale, FL 33309
Tel: 954-351-2120
Bob Taylor
3901 Second Avenue, NE, #401
Seattle, WA 98105
Phone: 206-633-3388
The Stusser Group
Attn. Leslie Stusser
1107 1st Ave., #1904
Seattle, WA 98101
Phone: 206-343-9940
Robert & Anne Thomas
606 Wellington Avenue
Seattle, WA 98122
Phone: 206-325-0207
Rick Thompson
4721 91st Ave. NE
Bellevue, WA 98004
Phone: 206-455-1953
Fax: 206-455-1938
Todd Tibbetts
10024-9th Avenue NW
Seattle, WA 98177
Tel: 206-621-8630 x135
Fax: 206-621-0651
Vans, Inc.
Attn. Craig Gosselin
15700 Shoemaker Ave.
Santa Fe Springs, CA 90670
Phone: 562-565-8473
Fax: 562-565-8413
Jeffrey Wiss
2855 Rock Creek Circle #112
Superior, CO 80027
Tel: 303-554-8924
Malcolm Witter
4314 East Mercer Way
Mercer Island, WA 98040
Phone: 206-232-6262
A-101
<PAGE> 107
David Worley
2 Kirsten Place
Weston, CT 06883
Phone: 203-226-3867
Anya Zolotusky
4421 Greenwood Avenue N., #402
Seattle, WA 98103
Tel: 206-621-8630 x140
Fax: 206-621-0651
GolfData Corporation
4639 N. 20th Place
Arlington, VA 22207
Attn: Alex Miceli
with a copy to:
Satex Investment Partners
10010 San Pedro, Suite 360
San Antonio, TX 78216
Attn: Danny Mills
Media One Interactive Services, Inc.
9000 E. Nichols Avenue, Suite 100
Englewood, CO 80112
Attn: Director of Finance
Fax: 303-705-5163
with a copy to:
Media One Group, Inc.
188 Inverness Drive
Englewood, CO 80112
Attn: General Counsel
The New York Times Magazine Group, Inc.
5520 Park Avenue
Trumbull, CT
Attn: Robert Carney
Fax: 203-373-7170
with a copy to:
The New York Times Company
229 West 43rd Street
New York, NY 10036
Attn: Secretary
Fax: 212-556-4634
Total Sports Inc.
133 Fayetteville Street Mall, 6th Floor
Raleigh, NC 27601
Attn: Frank Daniels, III
Fax: 919-755-8080
A-102
<PAGE> 108
with a copy to:
J. Christopher Lynch
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, NC 27607
Fax: 919-781-4865
Otto Candies
P.O. Box 25
Highway 90
Des Allemands, Louisiana 70030
Attn: Paul Candies
Fax: 504-469-7740
A-103
<PAGE> 109
EXHIBIT H
SHAREHOLDER CERTIFICATION
(ENTITY)
THIS SHAREHOLDER CERTIFICATION ("Certification") is being executed and
delivered by the undersigned shareholder (the "Shareholder") of GOLFDATA
CORPORATION, a Texas corporation ("GolfData"), in favor of and for the benefit
of GolfData, QUOKKA SPORTS, INC., a Delaware corporation ("Parent"), GOLF.COM,
L.L.C., a Delaware limited liability company (the "Company"), and DANNY MILLS
(the "Designated Company Agent").
RECITALS
Pursuant to a Purchase Agreement and Plan of Reorganization (the
"Agreement"), dated as of June , 2000, among Parent, the Selling Members
identified therein (including GolfData) and the Company, it is contemplated that
Parent will purchase or otherwise acquire from each Selling Member such Selling
Member's ownership interest in the Company (the purchase or other acquisition of
the ownership interests being referred to in this Certification as the
"Transaction"). Upon the consummation of the Transaction, (i) the Selling
Members will receive shares of common stock of Parent ("Parent Common Stock") in
exchange for their ownership interests in the Company with such exchange with
respect to GolfData constituting a "reorganization" within the meaning of
Section 368(a) of the Internal Revenue Code of 1986, as amended, and (ii)
GolfData will immediately distribute to its shareholders in complete liquidation
the shares of Parent Common Stock that GolfData received in the Transaction (the
"Distribution"). This distribution is required to preserve the nontaxable status
of the Transaction to GolfData and its shareholders. The information requested
below is required to comply with various securities laws applicable to such
issuance by Parent and distribution by GolfData.
CERTIFICATION
1. Residence Information. Please provide the full legal name of the
investing entity, address of the city and state or foreign country where your
investment decision regarding the Transaction is being made, phone number, and
Employee Identification Number.
--------------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
2. Accredited Investor Certification. The undersigned makes one of the
following representations regarding its net worth and certain related matters,
and has checked the applicable representation:
[ ] (i) The undersigned is a trust with total assets in excess of
$5,000,000 whose purchase is directed by a person with such
knowledge and experience in financial and business matters that
such person is capable of evaluating the merits and risks of the
prospective investment.
[ ] (ii) The undersigned is a bank, insurance company, investment company
registered under the United States Investment Company Act of
1940, as amended (the "Companies Act"), a broker or dealer
registered pursuant to Section 15 of the United States
Securities Exchange Act of 1934, as amended, a business
development company, a Small Business Investment Company
licensed by the United States Small Business Administration, a
plan with total assets in excess of $5,000,000 established and
maintained by a state for the benefit of its employees, or a
private business development company as defined in Section
202(a)(22) of the United States Investment Advisers Act of 1940,
as amended.
A-104
<PAGE> 110
[ ] (iii) The undersigned is an employee benefit plan and either all
investment decisions are made by a bank, savings and loan
association, insurance company, or registered investment
advisor, or the Shareholder has total assets in excess of
$5,000,000 or, if such plan is a self-directed plan, investment
decisions are made solely by persons who are accredited
investors.
[ ] (iv) The undersigned is a corporation, partnership, business trust,
not formed for the purpose of acquiring shares in the Company or
in the Parent, or an organization described in section 501(c)(3)
of the Internal Revenue Code of 1986, as amended (the "Code"), in
each case with total assets in excess of $5,000,000.
[ ] (v) The undersigned is an entity in which all of the equity owners
qualify under any of the above subparagraphs, or, if an
individual, each such individual has a net worth(1), either
individually or upon a joint basis with such individual's spouse,
of at least $1,000,000 (within the meaning of such terms as used
in the definition of "accredited investor" contained in Rule 501
under the Securities Act), or has had an individual income(2) in
excess of $200,000 for each of the two most recent years, or a
joint income with such individual's spouse in excess of $300,000
in each of those years, and has a reasonable expectation of
reaching the same income level in the current year.
[ ] (vi) The undersigned cannot make any of the representations set forth
in paragraphs "i" through "v" above.
IF YOU CHECKED PARAGRAPH (VI) ABOVE, PLEASE COMPLETE THE FOLLOWING ITEMS 3
THROUGH 10. IF YOU CHECKED ANY OF PARAGRAPHS (I) THROUGH (V) ABOVE, PLEASE
PROCEED TO ITEM 11.
3. Will the value of the Parent Common Stock you are scheduled to receive
exceed 10 percent of the investing entities' net worth at the time of the
Transaction and Distribution?
[ ] Yes [ ] No
4. Please describe the educational background, indicating degrees obtained,
of the person making the investment decisions with respect to the Transaction
and Distribution (the "Decision-Maker"). Please describe any college-level
courses that the Decision-Maker has taken relating to economics, finance,
accounting or statistics (attach a separate sheet of paper if you require more
space).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
---------------
1For purposes of this Certification, "net worth" means the excess of total
assets at fair market value over total liabilities, except that the principal
residence owned by a natural person shall be valued either (a) at cost,
including the cost of improvements, net of current encumbrances upon the
property, or (b) at the appraised value of the residence as determined upon a
written appraisal used by an institutional lender making a loan to the
individual secured by the property, including the cost of subsequent
improvements, net of current encumbrances upon the property. As used in the
preceding sentence, "institutional lender" means a bank, savings and loan
company, industrial loan company, credit union or personal property broker or a
company whose principal business is as a lender of loans secured by real
property and which has such loans receivable in the amount of $2,000,000 or
more.
2For purposes of this Certification, "income" means adjusted gross income, as
reported for federal income tax purposes, increased by the following amounts:
(a) the amount of any tax exempt interest income received, (b) the amount of
losses claimed as a limited partner in a limited partnership, (c) any deduction
claimed for depletion, (d) amounts contributed to an IRA or Keogh retirement
plan, (e) alimony paid, and (f) any amounts by which income from long-term
capital gains has been reduced in arriving at adjusted gross income pursuant to
the provisions of Section 1202 of the Internal Revenue Code.
A-105
<PAGE> 111
5. Please describe occupational history of the Decision-Maker briefly. What
is sought is a sufficient description to enable the Company to determine the
extent of the Decision-Maker's experience in financial and business matters
(attach a separate sheet of paper if you require more space).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. Please indicate the Decision-Maker's or the entity's prior experience in
investing in speculative, high technology companies such as Parent (attach a
separate sheet of paper if you require more space).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
7. Please indicate any other relevant investment experience of the
Decision-Maker or the entity (attach a separate sheet of paper if you require
more space).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
8. Please describe any pre-existing personal or business relationships
between the Decision-Maker or the entity and Parent, or any of its officers or
directors.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
9. If the Decision-Maker has a background or experience in the business
conducted by Parent, please describe.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
10. Appointment of Purchaser Representative.
If you checked paragraph (vi) of Question 2 above (an "Unaccredited
Investor"), you will be required (subject to certain exceptions) to utilize a
"Purchaser Representative" in connection with your evaluation of the risks and
merits of the Transaction and Distribution and an investment in Parent Common
Stock thereby. [ ] has agreed to act as Purchaser Representative
for such purpose.
BY SIGNING BELOW, EACH SHAREHOLDER WHO IS AN UNACCREDITED INVESTOR HEREBY
APPOINTS [ ] TO SERVE AS THE UNDERSIGNED'S PURCHASER
REPRESENTATIVE (as that term is used in Regulation D of the Securities Act of
1933, as amended (the "Securities Act")) in connection with the Transaction and
Distribution and an investment in Parent Common Stock thereby and hereby
acknowledges that (i) the Shareholder will consult with the Purchaser
Representative in connection with its evaluation of the merits and risks of the
Transaction and Distribution and an investment in Parent Common Stock and (ii)
the Shareholder has received and reviewed a letter from such Purchaser
Representative, attached hereto as Exhibit A, setting forth any material
A-106
<PAGE> 112
relationship between Parent or any of Parent's affiliates and Purchaser
Representative or any of his affiliates, which currently exists, are
contemplated or have existed at any time since May 1998.
UNLESS CONTACTED BY THE COMPANY, ALL NON-ACCREDITED INVESTORS WILL BE
REQUIRED TO EITHER ATTEND A MEETING WITH THE PURCHASER REPRESENTATIVE IN PERSON
OR BY PHONE OR TO PARTICIPATE IN A CONFERENCE CALL WITH THE PURCHASER
REPRESENTATIVE. THE DATES, TIMES AND OTHER INFORMATION FOR THE MEETING AND
CONFERENCE CALL WILL BE PROVIDED TO ALL NON-ACCREDITED INVESTORS IN A SEPARATE
COMMUNICATION.
Please note, in certain circumstances, if you are an Unaccredited Investor,
but Parent determines and notifies you that by the information set forth above
you otherwise have such knowledge and experience in financial and other business
matters that you are capable of evaluating the merits and risks of the
Transaction and Distribution and the investment in Parent Common Stock, you will
not be required to consult with the Purchaser Representative and you will not be
deemed to have appointed one hereunder.
11. Approval of Transaction and Distribution
The undersigned, by signing below, hereby authorizes GolfData to enter
into, execute and deliver the Agreement, approves the resulting Transaction and
Distribution.
12. Additional Representations and Acknowledgements.
The undersigned makes each of the following additional representations and
acknowledgements:
(i) No Distribution. The Parent Common Stock issued to Shareholder
will be acquired for investment for Shareholder's own account and not with
a view to the sale or distribution of any part thereof, and Shareholder has
no present intention of selling, granting any participation in, or
otherwise distributing the same.
(ii) Securities Laws Matters. The undersigned is aware (a) that the
Parent Common Stock to be issued to Shareholder in the Transaction and
Distribution will not be registered and will not be issued pursuant to a
registration statement under the Securities Act, but will instead be issued
in reliance on the exemption from registration set forth in Section 4(2) of
the Securities Act and/or in Rule 506 under the Securities Act, and (b)
that neither the Transaction and Distribution nor the issuance of such
Parent Common Stock has been approved or reviewed by the Securities and
Exchange Commission or by any other governmental agency.
(iii) Resale Restrictions.
(a) Shareholder is aware that, because the Parent Common Stock to
be issued in the Transaction and Distribution will not be registered
under the Securities Act, such Parent Common Stock cannot be resold
unless such Parent Common Stock is registered under the Securities Act
or unless an exemption from registration is available. Shareholder is
also aware that the provisions of Rule 144 under the Securities Act will
permit resale of the Parent Common Stock to be issued to Shareholder in
the Transaction and Distribution only under limited circumstances, and
such Parent Common Stock must be held by Shareholder for at least one
year before it can be sold pursuant to Rule 144.
(b) Shareholder understands that stop transfer instructions will be
given to Parent's transfer agent with respect to the Parent Common Stock
to be issued to Shareholder in the Merger, and that there will be placed
on the certificate or certificates representing such Parent Common Stock
a legend identical or similar in effect to the following legend
(together with any other legend or legends required by applicable state
securities laws or otherwise):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED
UNLESS REGISTERED UNDER THE ACT OR UNLESS AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE."
A-107
<PAGE> 113
(iv) Shareholder Can Protect Its Interest. The undersigned represents
that by reason of its or the Purchaser Representative's business or
financial experience, the undersigned has the capacity to protect its own
interests in connection with its acquisition of Parent Common Stock. The
undersigned acknowledges that it must, and represents that it can, bear the
economic risk of the investment Parent Common Stock indefinitely, until the
shares of Parent Common Stock are registered under the Securities Act, or
an exemption from registration is available.
(v) Company Information. The undersigned has received and read the
Agreement (along with the Escrow Agreement (as defined in the Agreement)).
The undersigned has also had the opportunity to ask questions of and
receive answers from Parent and the Company and their respective management
regarding the terms and conditions of the Transaction and Distribution and
the investment in Parent Stock.
13. Escrow Arrangements. The undersigned has carefully reviewed the
Agreement and Escrow Agreement, and understands and agrees that pursuant to the
Agreement, 10 percent of the Parent Common Stock to be issued to the Selling
Members (the "Escrow Shares") which constitutes the Transaction consideration
will be deposited with the Escrow Agent (as defined in the Escrow Agreement),
and that the shares deposited with the Escrow Agent shall be available to
satisfy indemnification claims as set forth in the Agreement. Pursuant to the
Agreement, Parent may seek indemnification for certain matters from the Escrow
Shares, in which event the portion of the Escrow Shares otherwise payable to the
undersigned would be reduced without any act of the undersigned, subject to the
procedures and limitations set forth in the Agreement and Escrow Agreement.
14. Appointment of Designated Company Agent. The undersigned hereby
consents to the election and appointment of Danny Mills, as representative, as
the Designated Company Agent (as such term is defined in the Agreements) and
authorizes such Designated Company Agent to act as the undersigned's duly
constituted attorney-in-fact in connection with the matters set forth in the
Agreement and Escrow Agreement until such time as a successor to any such
Designated Company Agent is replaced in accordance with the provisions of the
Escrow Agreement. The undersigned acknowledges and agrees that any decision,
act, consent or instruction of the Designated Company Agent shall constitute a
decision, act, consent or instruction of the undersigned and shall be final,
binding and conclusive on the undersigned, and that Parent and the Escrow Agent
may rely upon any such decision, act, consent or instruction of the Designated
Company Agent as being the decision, act, consent or instruction of the
undersigned.
15. Indemnification. The undersigned hereby agrees to indemnify and hold
harmless the Purchaser Representative, if applicable, and the Designated Company
Agent against and in respect of any and all loss, cost, expense, claim,
liability, deficiency, judgment or damage incurred by the Purchaser
Representative or Designated Company Agent (including without limitation fees
and disbursement of counsel) in respect of, as a result of, or in connection
with the performance of their duties hereunder or under the Agreement and any
related agreements or documents referenced therein in good faith and without
gross negligence or willful misconduct.
The undersigned represents that the information contained herein is
complete and accurate and may be relied upon by the Company and Parent, and that
the undersigned will notify Parent of any material change in any of such
information prior to the undersigned's investment in Parent.
A-108
<PAGE> 114
IN WITNESS WHEREOF, the undersigned has executed this Shareholder
Certification this day of , 2000.
Entity Name:
--------------------------------------------------------------------------------
--------------------------------------
Signature
--------------------------------------
Printed Name and Title
This Certification must be signed by the registered holder of Company
stock, exactly as the name(s) appear on the stock certificate(s) and as set
forth above.
A-109
<PAGE> 115
EXHIBIT A
LETTER FROM PURCHASER'S REPRESENTATIVE
A-110
<PAGE> 116
EXHIBIT H
SHAREHOLDER CERTIFICATION
(INDIVIDUAL)
THIS SHAREHOLDER CERTIFICATION ("Certification") is being executed and
delivered by the undersigned shareholder (the "Shareholder") of GolfData
Corporation, a Texas corporation ("GolfData"), in favor of and for the benefit
of GolfData, Quokka Sports, Inc., a Delaware corporation ("Parent"), Golf.com,
L.L.C., a Delaware limited liability company (the "Company"), and Danny Mills
(the "Designated Company Agent").
RECITALS
Pursuant to a Purchase Agreement and Plan of Reorganization (the
"Agreement"), dated as of June , 2000, among Parent, the Selling Members
identified therein (including GolfData) and the Company, it is contemplated that
Parent will purchase or otherwise acquire from each Selling Member such Selling
Member's ownership interest in the Company (the purchase or other acquisition of
the ownership interests being referred to in this Certification as the
"Transaction"). Upon the consummation of the Transaction, (i) the Selling
Members will receive shares of common stock of Parent ("Parent Common Stock") in
exchange for their ownership interests in the Company with such exchange with
respect to GolfData constituting a "reorganization" within the meaning of
Section 368(a) of the Internal Revenue Code of 1986, as amended, and (ii)
GolfData will immediately distribute to its shareholders in complete liquidation
the shares of Parent Common Stock that GolfData received in the Transaction (the
"Distribution"). This distribution is required to preserve the nontaxable status
of the Transaction to GolfData and its shareholders. The information requested
below is required to comply with various securities laws applicable to such
issuance by Parent and distribution by GolfData.
CERTIFICATION
1. Residence Information. Please provide your full legal name, residence
address, phone number, and Social Security Number.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
2. Personal Information. Please indicate the state which issued your
driver's license and the state in which you are registered to vote.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
A-111
<PAGE> 117
3. My Income.
Do you reasonably expect either your income,(1) from all sources during
this year, to exceed $200,000 or, if you are married, the joint income of you
and your spouse from all sources during this year to exceed $300,000?
[ ] Yes [ ] No
If no, please specify amount of expected income:
Was your yearly individual income from all sources during each of 1998 and
1999 in excess of $200,000 or, if you are married, was the joint income of you
and your spouse during each of those years in excess of $300,000?
[ ] Yes [ ] No
If no, please specify amount of your total individual and/or joint income
in 1998 and 1999:
---------------------------------------------------------------------------
4. Net Worth.
Is your net worth, including the net worth(1) of your spouse, in excess of
$1,000,000? Please remember that your net worth should include the value of your
principal residence if owned,(2) the Parent Common Stock, any other shares of
capital stock or options held by you and your spouse and your and your spouse's
owned personal property (e.g. furniture, jewelry, other valuables, etc.).
[ ] Yes [ ] No
If no, please specify your net worth:
IF YOU ANSWERED "YES" TO ALL QUESTIONS IN EITHER ITEM 3 OR ITEM 4, PLEASE
PROCEED TO ITEM 13.
---------------
1For purposes of this Certification, "income" means adjusted gross income, as
reported for federal income tax purposes, increased by the following amounts:
(a) the amount of any tax exempt interest income received, (b) the amount of
losses claimed as a limited partner in a limited partnership, (c) any deduction
claimed for depletion, (d) amounts contributed to an IRA or Keogh retirement
plan, (e) alimony paid, and (f) any amounts by which income from long-term
capital gains has been reduced in arriving at adjusted gross income pursuant to
the provisions of Section 1202 of the Internal Revenue Code.
2For purposes of this Certification, "net worth" means the excess of total
assets at fair market value over total liabilities, except that the principal
residence owned by a natural person shall be valued either (a) at cost,
including the cost of improvements, net of current encumbrances upon the
property, or (b) at the appraised value of the residence as determined upon a
written appraisal used by an institutional lender making a loan to the
individual secured by the property, including the cost of subsequent
improvements, net of current encumbrances upon the property. As used in the
preceding sentence, "institutional lender" means a bank, savings and loan
company, industrial loan company, credit union or personal property broker or a
company whose principal business is as a lender of loans secured by real
property and which has such loans receivable in the amount of $2,000,000 or
more.
A-112
<PAGE> 118
5. Will the value of the Parent Common Stock you will receive exceed 10
percent of your net worth, or your joint net worth with your spouse, if any, at
the time of the Transaction and Distribution?
[ ] Yes [ ] No
6. Please describe your educational background, indicating degrees
obtained. Please describe any college-level courses that you have taken relating
to economics, finance, accounting or statistics (attach a separate sheet of
paper if you require more space).
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
7. (i) Please state your present occupation, employer, primary business
address, and business phone number.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
(ii) Please describe your occupational history briefly. Specific
employers need not be identified. What is sought is a sufficient description to
enable the Company to determine the extent of your experience in financial and
business matters (attach a separate sheet of paper if you require more space).
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
8. Please indicate prior experience in investing in speculative, high
technology companies such as Parent (attach a separate sheet of paper if you
require more space).
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
9. Please indicate any other relevant investment experience, including any
experience that you may have directing the investment of any amounts in your
401(k) plan or other retirement plan and any experience that you may have
purchasing or selling stock (attach a separate sheet of paper if you require
more space).
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
A-113
<PAGE> 119
10. Please describe any pre-existing personal or business relationship
between you and Parent, or any of its officers or directors.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
11. If you have a background or experience in the business conducted by
Parent, please describe.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
12. Appointment of Purchaser Representative.
If you could not answer "YES" to all of the questions in EITHER Item 3 or
Item 4 above (an "Unaccredited Investor"), you will be required (subject to
certain exceptions) to utilize a "Purchaser Representative" in connection with
your evaluation of the risks and merits of the Transaction and Distribution and
an investment in Parent Common Stock thereby. [ ] has agreed to act as
Purchaser Representative for such purpose.
BY SIGNING BELOW, EACH SHAREHOLDER WHO IS AN UNACCREDITED INVESTOR HEREBY
APPOINTS [ ] TO SERVE AS THE UNDERSIGNED'S PURCHASER
REPRESENTATIVE (as that term is used in Regulation D of the Securities Act of
1933, as amended (the "Securities Act")) in connection with the Transaction and
Distribution and an investment in Parent Common Stock thereby and hereby
acknowledges that (i) the Shareholder will consult with the Purchaser
Representative in connection with his or her evaluation of the merits and risks
of the Transaction and Distribution and an investment in Parent Common Stock and
(ii) the Shareholder has received and reviewed a letter from such Purchaser
Representative, attached hereto as Exhibit A, setting forth any material
relationship between Parent or any of Parent's affiliates and Purchaser
Representative or any of his affiliates, which currently exists, are
contemplated or have existed at any time since May 1998.
UNLESS CONTACTED BY THE COMPANY, ALL NON-ACCREDITED INVESTORS WILL BE
REQUIRED TO EITHER ATTEND A MEETING WITH THE PURCHASER REPRESENTATIVE IN PERSON
OR BY PHONE OR TO PARTICIPATE IN A CONFERENCE CALL WITH THE PURCHASER
REPRESENTATIVE. THE DATES, TIMES AND OTHER INFORMATION FOR THE MEETING AND
CONFERENCE CALL WILL BE PROVIDED TO ALL NON-ACCREDITED INVESTORS IN A SEPARATE
COMMUNICATION.
Please note, in certain circumstances, if you are an Unaccredited Investor,
but Parent determines and notifies you that by the information set forth above
you otherwise have such knowledge and experience in financial and other business
matters that you are capable of evaluating the merits and risks of the
Transaction and Distribution and the investment in Parent Common Stock, you will
not be required to consult with the Purchaser Representative and you will not be
deemed to have appointed one hereunder.
13. Approval of Transaction and Distribution.
The undersigned, by signing below, hereby authorizes GolfData to enter
into, execute and deliver the Agreement, approves the resulting Transaction and
Distribution.
A-114
<PAGE> 120
14. Additional Representations and Acknowledgements.
The undersigned makes each of the following additional representations and
acknowledgements:
(i) No Distribution. The Parent Common Stock issued to Shareholder
will be acquired for investment for Shareholder's own account and not with
a view to the sale or distribution of any part thereof, and Shareholder has
no present intention of selling, granting any participation in, or
otherwise distributing the same.
(ii) Securities Laws Matters. The undersigned is aware (a) that the
Parent Common Stock to be issued to Shareholder in the Transaction and
Distribution will not be registered and will not be issued pursuant to a
registration statement under the Securities Act, but will instead be issued
in reliance on the exemption from registration set forth in Section 4(2) of
the Securities Act and/or in Rule 506 under the Securities Act, and (b)
that neither the Transaction and Distribution nor the issuance of such
Parent Common Stock has been approved or reviewed by the Securities and
Exchange Commission or by any other governmental agency.
(iii) Resale Restrictions.
(a) Shareholder is aware that, because the Parent Common Stock to
be issued in the Transaction and Distribution will not be registered
under the Securities Act, such Parent Common Stock cannot be resold
unless such Parent Common Stock is registered under the Securities Act
or unless an exemption from registration is available. Shareholder is
also aware that the provisions of Rule 144 under the Securities Act will
permit resale of the Parent Common Stock to be issued to Shareholder in
the Transaction and Distribution only under limited circumstances, and
such Parent Common Stock must be held by Shareholder for at least one
year before it can be sold pursuant to Rule 144.
(b) Shareholder understands that stop transfer instructions will be
given to Parent's transfer agent with respect to the Parent Common Stock
to be issued to Shareholder in the Transaction and Distribution, and
that there will be placed on the certificate or certificates
representing such Parent Common Stock a legend identical or similar in
effect to the following legend (together with any other legend or
legends required by applicable state securities laws or otherwise):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED
UNLESS REGISTERED UNDER THE ACT OR UNLESS AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE."
(iv) Shareholder Can Protect Its Interest. The undersigned represents
that by reason of his or her or the Purchaser Representative's business or
financial experience, the undersigned has the capacity to protect its own
interests in connection with its acquisition of Parent Common Stock. The
undersigned acknowledges that he or she must, and represents that he or she
can, bear the economic risk of the investment in Parent Common Stock
indefinitely, until the shares of Parent Common Stock are registered under
the Securities Act, or an exemption from registration is available.
(v) Company Information. The undersigned has received and read the
Agreement (along with the Escrow Agreement (as defined in the Agreement)).
The undersigned has also had the opportunity to ask questions of and
receive answers from Parent and the Company and their respective management
regarding the terms and conditions of the Transaction and Distribution and
the investment in Parent Stock.
15. Escrow Arrangements. The undersigned has carefully reviewed the
Agreement and Escrow Agreement, and understands and agrees that pursuant to the
Agreement, 10 percent of the Parent Common Stock to be issued to the Selling
Members (the "Escrow Shares") will be deposited with the Escrow Agent (as
defined in the Escrow Agreement), and that the shares deposited with the Escrow
Agent shall be available to satisfy
A-115
<PAGE> 121
indemnification claims as set forth in the Agreement. Pursuant to the Agreement,
Parent may seek indemnification for certain matters from the Escrow Shares, in
which event the portion of the Escrow Shares otherwise payable to the
undersigned would be reduced without any act of the undersigned, subject to the
procedures and limitations set forth in the Agreement and Escrow Agreement.
16. Appointment of Designated Company Agent. The undersigned hereby
consents to the election and appointment of Danny Mills as representative, as
the Designated Company Agent (as such term is defined in the Agreement) and
authorizes such Designated Company Agent to act as the undersigned's duly
constituted attorney-in-fact in connection with the matters set forth in the
Agreement and Escrow Agreement until such time as a successor to such Designated
Company Agent is replaced in accordance with the provisions of the Escrow
Agreement. The undersigned acknowledges and agrees that any decision, act,
consent or instruction of the Designated Company Agent shall constitute a
decision, act, consent or instruction of the undersigned and shall be final,
binding and conclusive on the undersigned, and that Parent and the Escrow Agent
may rely upon any such decision, act, consent or instruction of the Designated
Company Agent as being the decision, act, consent or instruction of the
undersigned.
17. Indemnification. The undersigned hereby agrees to indemnify and hold
harmless the Purchaser Representative, if applicable, and the Designated Company
Agent against and in respect of any and all loss, cost, expense, claim,
liability, deficiency, judgment or damage incurred by the Purchaser
Representative or Designated Company Agent (including without limitation fees
and disbursement of counsel) in respect of, as a result of, or in connection
with the performance of their duties hereunder or under the Agreement and any
related agreements or documents referenced therein in good faith and without
gross negligence or willful misconduct.
The undersigned represents that the information contained herein is
complete and accurate and may be relied upon by the Company and Parent, and that
the undersigned will notify Parent of any material change in any of such
information prior to the undersigned's investment in Parent.
IN WITNESS WHEREOF, the undersigned has executed this Shareholder
Certification this day of , 2000.
--------------------------------------
Signature
--------------------------------------
Printed Name
--------------------------------------
Signature
--------------------------------------
Printed Name
This Certification must be signed by the registered holder of Company
stock, exactly as the name(s) appear on the stock certificate(s) and as set
forth above.
A-116
<PAGE> 122
EXHIBIT A
LETTER FROM PURCHASER'S REPRESENTATIVE
A-117
<PAGE> 123
EXHIBIT I
FORM OF OPINION OF COMPANY'S COUNSEL
1. The Company is a validly existing limited liability company in good
standing under the laws of the State of Delaware.
2. The Company has the requisite limited liability company power to own its
property and assets as described in the Agreement.
3. The Company has the limited liability company power to enter into,
execute, and deliver the Agreement and consummate the transactions
contemplated thereby to be consummated by it.
4. The Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
rights to indemnity under section 9 of the Agreement may be limited by
applicable laws and except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium or other
similar laws affecting creditors' rights, and subject to general equity
principles and to limitations on availability of equitable relief,
including specific performance and injunctive relief.
5. The execution and delivery of the Agreement by the Company do not
violate any provision of the Company's Certificate of Formation or
Operating Agreement, each as amended and in effect as of the date
hereof.
A-118
<PAGE> 124
EXHIBIT J
FORM OF OPINION OF COUNSEL TO SELLING MEMBERS
1. The Selling Member has the corporate power to enter into, execute, and
deliver the Agreement and consummate the transactions contemplated
thereby. The Agreement has been duly and validly authorized, executed
and delivered by the Selling Member and constitutes a valid and binding
agreement of the Selling Member enforceable against the Selling Member
in accordance with its terms, except as rights to indemnity under
section 9 of the Agreement may be limited by applicable laws and except
as enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws affecting
creditors' rights, and subject to general equity principles and to
limitations on availability of equitable relief, including specific
performance or injunctive relief.
2. The execution and delivery of the Agreement by the Selling Member do not
violate the Selling Member's Articles of Incorporation or Bylaws.
A-119
<PAGE> 125
EXHIBIT K
FORM OF COOLEY GODWARD OPINION
We have acted as counsel for Quokka Sports, Inc., a Delaware corporation
(the "Company"), in connection with the acquisition of ownership interests in
Golf.com, L.L.C. pursuant to the Purchase Agreement and Plan of Reorganization
dated as of June , 2000 (the "Agreement"). We are rendering this opinion
pursuant to Section 7.3(a) of the Agreement. Except as otherwise defined herein,
capitalized terms used but not defined herein have the respective meanings given
to them in the Agreement.
In connection with this opinion, we have examined and relied upon the
representations and warranties as to factual matters contained in and made
pursuant to the Agreement by the various parties and originals or copies
certified to our satisfaction, of such records, documents, certificates,
opinions, memoranda and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below. Where we render
an opinion "to the best of our knowledge" or concerning an item "known to us" or
our opinion otherwise refers to our knowledge, it is based solely upon (i) an
inquiry of attorneys within this firm who perform legal services for the
Company, (ii) receipt of a certificate executed by an officer of the Company
covering such matters, and (iii) such other investigation, if any, that we
specifically set forth herein.
In rendering this opinion, we have assumed: the genuineness and
authenticity of all signatures on original documents; the authenticity of all
documents submitted to us as originals; the conformity to originals of all
documents submitted to us as copies; the accuracy, completeness and authenticity
of certificates of public officials; and the due authorization, execution and
delivery of all documents (except the due authorization, execution and delivery
by the Company of the Agreement), where authorization, execution and delivery
are prerequisites to the effectiveness of such documents. We have also assumed:
that all individuals executing and delivering documents had the legal capacity
to so execute and deliver; that you have received all documents you were to
receive under the Agreement; that the Agreement is an obligation binding upon
you; if you are a corporation or other entity, that you have filed any required
California franchise or income tax returns and have paid any required California
franchise or income taxes; and that there are no extrinsic agreements or
understandings among the parties to the Agreement that would modify or interpret
the terms of the Agreement or the respective rights or obligations of the
parties thereunder.
Our opinion is expressed only with respect to the federal laws of the
United States of America, the laws of the State of California and the General
Corporation Law of Delaware. We note that the parties to the Agreements have
designated the laws of the State of Delaware as the laws governing the
Agreements. Our opinion in paragraph 4 below as to the validity, binding effect
and enforceability of the Agreements is premised upon the result that would
obtain if a California court were to apply the internal laws of the State of
California (notwithstanding the designation of the laws of the State of
Delaware) to the interpretation and enforcement of the Agreements. We express no
opinion as to whether the laws of any particular jurisdiction apply, and no
opinion to the extent that the laws of any jurisdiction other than those
identified above are applicable to the subject matter hereof. We are not
rendering any opinion as to compliance with any antifraud law, rule or
regulation relating to securities, or to the sale or issuance thereof.
With regard to our opinion in paragraph 7 below, we have examined and
relied upon a certificate executed by an officer of the Company, to the effect
that the consideration for all outstanding shares of capital stock of the
Company was received by the Company in accordance with the provisions of the
applicable Board of Directors resolutions and any agreement relating to the
issuance of such shares, and we have undertaken no independent verification with
respect thereto.
On the basis of the foregoing, in reliance thereon and with the foregoing
qualifications, we are of the opinion that:
1. The Company has been duly incorporated and is a validly existing corporation
in good standing under the laws of the State of Delaware.
A-120
<PAGE> 126
2. The Company has the requisite corporate power to own its property and assets,
to conduct its business as such business is currently being conducted, to
enter into the Agreement and to consummate the transactions contemplated
thereby.
3. All corporate action required to be taken on the part of the Company to
authorize the Agreement and consummate the transaction contemplated thereby
has been taken.
4. The Agreement has been duly and validly authorized, executed and delivered by
the Company and constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement may be limited by applicable laws and except as enforcement may
be limited by applicable bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws affecting creditors' rights, and subject to
general equity principles and to limitations on availability of equitable
relief, including specific performance and injunctive relief.
5. The execution and delivery of the Agreement and consummation of the
transaction contemplated thereby by the Company are not prohibited by, and
will not violate or conflict with (a) any provision of the certificate of
incorporation or bylaws of the Company, (b) any governmental statute, rule or
regulation applicable to the Company or (c) any order, writ, judgment,
injunction, decree, determination or award which has been entered against the
Company and of which we are aware, the violation or contravention of which
would materially and adversely affect the Company or its assets, financial
condition or operations.
6. [Based in part upon the representations and warranties of each Selling Member
made in the Agreement and corresponding exhibits, the offer and sale of the
Parent Common Stock pursuant to the Agreement will be exempt from the
registration requirements of the Securities Act, subject to timely filing of
a Form D pursuant to Regulation D promulgated under the Securities Act.]
[Subject to Parent's ability to comply with Regulation D]
7. The Parent Common Stock to be issued pursuant to the Agreement have been duly
authorized, and upon issuance and delivery against payment therefor in
accordance with the terms of the Agreement, will be validly issued,
outstanding, fully paid and nonassessable.
This opinion is intended solely for your benefit and is not to be made
available to or be relied upon by any other person, firm, or entity without our
prior written consent.
Very truly yours,
COOLEY GODWARD LLP
By:
------------------------------------
[Name]
A-121